SOIL 
.L46 


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Judicial  Answers 
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By 


LEMUEL  D,  LILLY 
Attorney,  Columbus,  Ohio 


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Bench  vs.  Bar 


OR 


Judicial  Answers 
to  Saloon  Arguments 


By 

LEMUEL  D.  LILLY 

Attorney,  Cdlumbus,  Ohio 


Westerville,  Ohio 

The  American  Issue  Publishing  Company 

1910 


U" 


THE  PURPOSES  OF  GOVERNMENT. 

The  purposes  of  government  are  nowhere  more  clearly  set 
out  than  in  the  preamble  to  the  National  Constitution.  These 
purposes  are:  to  form  a  more  perfect  union,  establish  justice, 
insure  domestic  tranquility,  provide  for  the  common  defense, 
promote  the  general  welfare,  and  secure  the  blessings  of  liberty 
to  ourselves  and  our  posterity. 

The  union  has  been  perfected,  justice  'has  been  established, 
domestic  tranquility  is  insured,  the  common  defense  is  pro- 
vided for,  and  we  are  engaged  today  in  the  task  of  promoting  the 
general  welfare  and  securing  the  blessings  of  liberty  to  our- 
selves and  our  posterity. 

The  promotion  of  the  general  welfare  is  something  that 
cannot  be  accomplished  in  a  day  or  any  fixed  time;  it  is  a  work 
that  is  continuing  in  its  nature.  It  involves  the  development  of 
public  character,  and  public  character  can  only  be  advanced  by 
5I0W  degrees  and  persistent  work.  The  public  welfare  can  be 
promoted  in  no  better  way  than  by  the  protection  and  advance- 
ment of  public  morals. 

Gladstone's  maxim  was  that  it  is  the  duty  of  government  to 
make  it  as  easy  as  possible  to  do  right  and  as  hard  as  possible  to 
do  wrong. 

In  all  the  essentials  of  patriotism,  Washington  still  remains 
our  first  American.  In  his  farewell  address  he  said:  "Morality 
is  a  necessary  spring  of  popular  government,  *  *  *  *  "Of 
all  the  dispositions  and  habits  which  lead  to  political  prosperity, 
religion  and  morality  are  indispensable  supports.  In  vain  would 
that  man  claim  the  tribute  of  patriotism,  who  should  labor  to 
subvert  these  great  pillars  of  human  happiness." 

In  a  republic  where  the  people  govern  themselves,  intelli- 
gence and  morality  are  the  two  corner  stones  of  the  temple  of 
liberty — intelligence  enough  to  comprehend  the  issues  of  state 
when  they  are  presented,  and  moral  character  enough  to  do  the 
right  thing  when  the  public  welfare  calls  for  our  services. 

The  immoral  man  does  not  help  manage  the  government; 
the  government  must  help  manage  'him.  Anything  which  less- 
ens the  disposition  or  ability  of  a  man  to  govern  himself,  less- 
ens his  disposition  and  ability  to  help  govern  others.     Every 

3 


citizen,  who  for  any  oaiise-cannot,  or  will  not,  govern  himself, 
is  a  crumbli^jj  s^>ne  in  tl-ie  -temple  of  liberty.  The  immoral  man 
is,  therefore,  an  element  of  wecikness  in  a  republic,  and  any 
business  or  institution  which  produces  the  immoral  man  is  an 
enemy  of  the  state. 

The  constitution  of  Ohio  recognizes  these  moral  truths  as 
fundamental  by  the  following  provisions,  viz:  "Religion,  moral- 
ity and  knowledge,  being  essential  to  good  government,  it 
shall  be  the  duty  of  the  general  assembly  to  pass  suitable  laws 
to  protect  every  religious  denomination  in  the  peaceable  enjoy- 
ment of  its  own  mode  of  public  worship,  and  to  encourage 
schools  and  the  means  of  instruction,"    Art.  i,  Sec.  7. 

LEGISLATURE   HAS   FULLEST  AUTHORITY  TO   PRO- 
MOTE GENERAL  WELFARE. 

These  moral  principles  are  not*  mere  fancies  for  patriotic 
holidays.  They  are  the  most  necessary  elements  of  every  day 
conduct.  Both  the  federal  and  the  state  courts  have  given  their 
fullest  sanction  to  all  laws  which  promote  the  general  welfare. 

The  general  welfare  consists  of  many  different  things. 
\Vithout  attempting  to  enumerate  all  the  elements  of  the  public 
welfare,  it  will  be  sufficient  for  this  discussion  to  say,  that  the 
general  welfare  includes  the  public  safety,  public  health,  public 
comfort,  public  morals,  public  convenience  and  general  pros- 
perity. These  objects  are  attained  in  the  administration  of  the 
g-overnment  by  the  application  of  the  police  powers  of  the 
states. 

The  police  power  is  the  power  of  promoting  the  general 
welfare  by  restraining  and  regulating  the  use  of  liberty  and 
property.  An  act  of  government  comes  within  the  police  power 
of  the  state,  if  it  aims  to  secure  and  promote  the  general  wel- 
fare, even  though  it  acts  by  restraint  and  compulsion. 

The  public  welfare  is  promoted  by  improving  the  social  and 
economic  conditions  affecting  the  community  at  large,  with  the 
view  of  securing  the  greatest  good  to  the  greatest  number. 
Some  people  think  they  have  expressed  the  whole  truth  when 
they  proclaim  that  government  rests  upon  the  consent  of  the 
governed.  This  declaration  is  a  great  truth  but  in  these  days 
of  a  great  political  awakening  men  are  giving  appropriate  em- 
p'hasis  to  another  truth  equally  vital,  that  government  rests 
upon  the  necessity  of  putting  even  inherent  rights  under  such 
control  as  is  essential  to  their  preservation.  To  this  end  every 
mdividual,    every   sovereign    citizen,    must    submit    to    such    re- 


straints  in  the  exercise  of  his  liberty  or  the  use  of  his  property 
as  may  be  required  to  remove  or  reduce  the  dai^ger  of  the 
abuse  of  those  rights  by  those  Who  are  careless  or  unscrupu- 
lous. 

The  police  power  may  be  exercised  for  the  protection  of 
society  from  crime,  for  the  preservation  of  safety  and  health 
and  for  the  promotion  of  public  morals.  Government  has  a 
right  to  promote  public  morals  because  immorality  has  no  right 
to  existence  or  toleration,  and  because  vice  impairs  the  strength 
of  the  community  and  spreads  evil  example  and  tends  to  cor- 
rupt others. 

The  foregoing  statement  of  the  police  power  is  supported 
by  a  multitude  of  judicial  opinions.  A  few  citations  are  appro- 
priate. 

In  the  case  of  Booth  v.  People,  i86  111.  43,  78  Am.  St.  Rep. 
229,231,  the  Supreme  Court  of  Illinois  says:  "The  state  in- 
herently possesses,  and  the  general  assembly  may  lawfully 
exercise,  such  power  of  restraint  upon  private  rights  as  may  be 
'Ound  to  be  necessary  and  appropriate  to  promote  the  health, 
comfort,  safety  and  welfare  of  society.  This  power  is  known  as 
the  police  power  of  the  state.  In  the  exercise  of  this  power, 
the  general  assembly  may,  by  valid  enactments — i.e.,  "due  pro- 
cess of  law" — prohibit  all  things  hurtful  to  the  comfort,  safety 
and  welfare  of  society,  even  though  the  prohibition  invade  the 
right  of  liberty  or  property  of  an  individual." 

The  New  York  Court  of  Appeals,  in  the  matter  of  Jacobs, 
98  N.  Y.  98,  50  Am.  Rep.  641,  says  of  the  police  power: 
"That  power  is  very  broad  and  comprehensive,  and  is  exercised 
to  promote  the  health,  comfort,  safety  and  welfare  of  society. 
Its  exercise  in  extreme  cases  is  frequently  justified  by  the 
maxim  salus  populi  suprema  lex  est.  Under  it  the  conduct  of 
an  individual  and  the  use  of  property  may  be  regulated  so  as 
to  interfere,  to  some  extent,  with  the  freedom  of  the  one  and 
the  enjoyment  of  the  other;  and  in  cases  of  great  emergency 
engendering  overruling  necessity,  property  may  be  taken  or 
destroyed  without  compensation,  and  without  what  is  commonly 
called  due  process  of  law." 

In  Commonwealth  v.  Alger,  7  Cush.  53,  84,  Shaw,  Chief 
Justice  of  Massachusetts,  says  that  the  "police  power  was 
vested  in  the  legislature  by  the  constitution,  to  make,  ordain 
and  establish  all  manner  of  wholesome  and  reasonable  laws, 
statutes  and  ordinances,  either  with  penalties  or  without,  not 
repugnant  to  the  constitution,  as  they  shall  judge  to  be  for  the 


cood  and  welfare  of  the  Commonwealth  and  of  the  subjects  of 
the  same." 

In  the  case  of  Board  of  Pharmacy  v.  Cassidy,  74  S.  W.  Rep. 
']Z2,  the  Kentucky  Court  of  Appeals  says:  "All  courts  agree 
that  the  police  power  of  the  state  extends  to  all  regulations  af- 
fecting the  lives,  limbs,  health,  comfort,  good  order,  morals, 
peace  and  safety  of  society,  and  hence  may  be  exercised  on 
many  subjects  and  in  numerous  ways." 

These  principles,  in  various  forms  of  expression,  but  always 
with  the  same  general  meaning,  have  been  recognized  by  the 
Courts  of  every  state  in  the  Union.  There  are  no  exceptions. 
The  principle  could  not  be  more  clearly  stated  by  multiplying 
quotations  from  the  opinions  of  the  Courts. 

However,  some  clearer  understanding  of  the  general  princi- 
ples may  be  had  by  reference  to  a  few  concrete  illustrations  of 
the  exercise  of  the  power  in  various  cases.  The  police  power 
has  been  exercised  to  prevent  fraud.  People  v.  Wagner,  (Mich.) 
24  Am.  St.  Rep.  141;  to  protect  public  health,  (Ga.)  Morris  v. 
Columbus,  66  Am.  St.  Rep.  243;  to  prohibit  persons  coming  from 
a  place  infected  with  contagious  disease  {J2  Am.  St.  Rep.  458); 
to  compel  compulsory  vaccination,  State  v.  Hay,  (N.  C.)  ^^  Am. 
St.  Rep.  691;  to  restrain  the  manufacture  and  sale  of  oleomar- 
gerine,  Butler  v.  Chambers,  (Minn.)  i  Am.  St.  Rep.  638;  to  regu- 
late the  sale  of  lard  substances  and  of  food  prepared  there- 
from, State  V.  Aslesen,  (Minn.)  ^f^  Am.  St.  Rep.  620;  to  prescribe 
sanitary  regulations  for  dairymen  and  other  milk  dealers.  State 
V.  Broadbelt,  (Md.)  yz  Am.  St.  Rep.  201;  to  require  a  railroad 
company  to  give  signals  at  highway  crossings,  Ry.  Co.  v.  Slater, 
(111.)  16  Am.  St.  Rep.  242;  to  prohibit  any  person  from  using 
any  building  for  a  stable  for  more  than  four  horses,  unless  li- 
censed to  do  so,  Newton  v.  Joyce,  (Mass.)  55  Am.  St.  Rep.  385; 
to  regulate  the  keeping  of  dogs,  Griggs  v.  Macon,  (Ga.)  68  Am. 
St.  Rep.  134;  to  require  that  water  be  furnished  in  sufficient 
quantities  in  tenement  houses.  Health  Department  v.  Rector, 
(N.  Y.)  45  Am.  St.  Rep.  579;  to  punish  habitual  drunkenness, 
St.  Joseph  v.  Harris,  59  Mo.  App.  122;  t©  regulate  the  sale  of 
intoxicating  liquors.  Miller  v.  State,  3  O.  S.  486;  to  prohibit  base 
ball  on  Sunday,  State  v.  Powell,  58  O.  S.  324. 

These  decisions  from  the  State  Courts  have  the  fullest 
sanction  of  the  Supreme  Court  of  the  United  States.  That  court 
has  said  time  after  time  that  the  several  states  have  a  right 
to  protect  the  public  health  and  the  public  morals. 

The  court  has  said:  Power  to  protect  the  general  welfare 
is  not  limited.     (N.  O.  Gaas  Light  Co.  v.  La.  Light  Co.,  6  Sup. 


Ct.  Rep.  262,)  *  *  *  *  The  police  power  "extends  to  all  matters 
affecting  the  public  health  or  the  public  morals."  (Stone  v. 
Mississippi,  loi  U.  S.  814.)  In  sustaining  the  Kansas  Prohibi- 
tion statute  in  1887,  the  Court  said:  "Everything  prejudicial  to 
the  health  or  morals  of  a  city  may  be  removed,"  (Mugler  v. 
Kansas,  123  U.  S.  623.)  "Whatever  is  contrary  to  public  policy 
or  inimical  to  the  public  interests  is  subject  to  the  police  power 
of  the  state."  (L.  &  N.  Ry.  Co.,  v.  Kentucky,  161  U.  S.  677.) 
The  police  power  "May  be  lawfully  resorted  to  for  the  purpose 
of  preserving  the  public  health,  safety,  or  morals,  or  the 
abatement  of  public  nuisances."  (Holden  v.  Hardy,  169  U.  S. 
366.) 

Perhaps  the  strongest  statement  of  the  doctrine  to  be  found 
any  where  is  in  the  case  of  Lawton  v.  Steele,  152  U.  S.  133,  where 
the  United  States  Supreme  Court  thus  proclaims  it:  "The  ex- 
tent and  limits  of  what  is  known  as  the  police  power  have  been 
a  fruitful  subject  of  discussion  in  the  appellate  courts  of  nearly 
every  state  in  the  union.  It  is  universally  conceded  to  include 
everything  essential  to  the  public  safety,  health  and  morals, 
and  to  justify  the  destruction  or  abatement,  by  summary  pro- 
ceedings, of  whatever  may  be  regarded  as  a  public  nuisance.  Un- 
der this  power  it  has  been  held  that  the  state  may 
order  the  destruction  of  a  house  falling  to  decay  or 
otherwise  endangering  the  lives  of  passersby;  the  demolition 
of  such  as  are  in  the  path  of  a  conflagration;  the  slaughter  of 
diseased  cattle;  the  destruction  of  decayed  or  unwholesome 
food;  the  prohibition  of  wooden  buildings  in  cities;  the  regula- 
tion of  railways  and  other  means  of  public  conveyance,  and  of 
interments  in  burial  grounds;  the  restriction  of  objectionable 
trades  to  certain  localities;  the  compulsory  vaccination  of  child- 
ren; the  confinement  of  the  insane  or  those  afflicted  with  con- 
tagious diseases;  the  restraint  of  vagrants,  beggars  and  habitual 
drunkards;  the  suppression  of  obscene  publications  and  houses 
of  ill  fame;  and  the  prohibition  of  gambling  houses  and  places 
where  intoxicating  liquors  are  sold." 

POWER  TO  PROTECT  PUBLIC  MORALS  IS  INHERENT. 

The  right  of  the  state  to  protect  itself  against  crime  and 
misery  is  a  law  of  nature,  enjoyed  by  society  before  constitu- 
tions were  ever  adopted,  and  is  as  fundamental  as  the  right  of 
Felf-defense  in  the  individual. 

In  Tredway  v.  Riley,  32  Nebr.  495,  the  Supreme  Court  of 
Nebraska  quotes  as  good  law  the  language  of  Mr.  Justice  Mc 


Lean  in  the  License  cases,  5  How.  589,  where  he  says  the  police 
power  "is  a  power  essential  to  self-preservation,  and  exists, 
necessarily,  in  every  organized  community.  It  is,  indeed,  the 
law  of  nature,  and  is  possessed  by  man  in  his  individual  capac- 
ity." 

In  State  v.  Aiken,  26  L.  R.  A.  352,  the  South  Carolina  Su- 
preme Court  says  of  the  police  power:  "The  origin  of  this  pow- 
er must  be  sought  in  the  very  purpose  and  frame  work  of 
organized  society.  It  is  fundamental  and  essential  to  govern- 
ment. It  is  a  necessary  and  inherent  attribute  of  sovereignty. 
It  antedates  all  laws,  and  may  be  described  as  the  assumption 
on  which  constitutions  rest;  for  the  state,  whether  we  regard  it 
as  an  association  of  individuals  or  as  a  moral  organism,  must 
have  the  right  of  self-protection,  and  the  power  to  preserve  its 
own  existence  in  safety  and  prosperity,  else  it  could  neither 
fulfill  the  law  of  its  being  nor  discharge  its  duties  to  the  indi- 
vidual. And  to  this  end  it  is  necessarily  invested  with  power 
to  enact  such  measures  as  are  adapted  to  secure  its  own  author- 
ity and  peace,  and  preserve  its  constituent  members  safety, 
health  and  morality." 

The  Supreme  Court  of  Tennessee  thus  expresses  the  same 
proposition: 

"The  first  right  of  a  state,  as  of  a  man,  is  self-protection, 
and  with  the  state  that  right  involves  the  universally  acknowl- 
edged power  and  duty  to  enact  and  enforce  all  such  laws,  not 
in  plain  conflict  with  some  provision  of  the  State  or  federal 
constitution,  as  may  rightly  be  deemed  necessary  or  expedient 
for  the  safety,  health,  morals,  comfort  and  welfare  of  its  peo- 
ple." (Harbison  v.  Knoxville  Iron  Co.,  103  Tenn.  421,  'j^i  Am. 
St.  Rep.  682.) 

The  United  States  Supreme  Court  is  in  full  accord  with  these 
state  decisions.    That  Court  has  said: 

"No  legislature  can  bargain  away  the  public  health  or 
public  morals.  The  people  themselves  cannot  do  it,  much  less 
their  servants.  (Stone  v.  Mississippi,  loi  U.  S.  814.)  "No 
corporation  or  individual  can  acquire  any  rights,  by  contract  or 
otherwise,  which  the  government  may  not  annul  and  take  away, 
if  the  exercise  of  such  rights  becomes  detrimental  to  the  public 
health  or  the  public  morals."  (Gas  Light  Co.  v.  La.  Light  Co., 
6  Sup.  Ct.  Rep.  262.)  "This  power  legitimately  exercised,  can 
neither  be  limited  by  contract,  nor  bartered  away  by  legisla- 
tion."    (Holden  v.  Hardy,  169  U.  S.  366.) 

8 


SOME    OBSERVATIONS. 

1.  The  constitution  of  Ohio  says  that  morality  and  know- 
ledge are  essential  to  good  government — not  merely  appropriate, 
or  helpful,  but  essential, 

2.  The  right  to  protect  public  morals  is  inherent,  is  not 
limited,  and  cannot  be  lost  or  taken  away.  Vested  rights  in 
property  and  personal  liberty  of  conduct  may  be  restrained  as 
tar  as  the  public  welfare  may  require.  No  rights  are  of  more 
importance  that  the  public  welfare. 

3.  The  people  need  not  beg  for  the  right  to  pass  moral  leg- 
islation and  secure  the  enforcement  of  laws  for  the  protection 
of  public  morals.  They  have  always  had  that  right  and  have 
it  now — the  sacred  right  of  self  defense.  No  moral  wrong  in 
politics  can  acquire  any  legal  rights.  Whatever  attributes  of 
political  power  the  wrong  may  manifest  are  usurpations.  Vice 
has  no  rights  and  should  not  be  tolerated. 

4.  Public  health  and  public  morals  are  always  linked  to- 
gether in  these  doctrines  of  the  courts.  The  more  important 
part  of  the  general  welfare  is  public  morals.  We  can  ill  afford 
to  do  without  intelligence,  but  an  unlettered  man  may  be  honest 
and  therefore  a  safe  citizen.  A  sick  man  may  require  much 
care  and  be  a  burden  to  his  friends  and  even  to  the  public.  He 
may,  nevertheless,  be  a  harmless  citizen.  But  the  immoral  man 
is  never  a  harmless  or  safe  citizen.  Therefore  the  paramount 
duty  of  citizenship  in  a  republic  is  to  prevent  the  making  of  the 
immoral  man. 

5.  While  this  controversy  is  in  part  social  and  economic, 
it  is  in  still  a  wider  sense  patriotic.  Government  was  not  institut- 
ed among  men,  and  is  not  carried  on,  merely  for  the  purposes 
of  building  roads  and  streets,  punishing  crime  and  levying  and 
collecting  taxes,  but  for  the  higher  purpose  of  promoting  the 

-general  welfare — spreading  intelligence,  protecting  public  health 
and  strengthening  the  moral  character  of  our  citizenship.  This 
is  the  new  patriotism.  Anything  which  destroys  or  injures  pub- 
lic morals  is  a  traitor  to  the  state. 

PLACE  OF  THE  SALOON  IN  SOCIETY  AND  GOVERN- 

MENT. 

Since  intellectual  and  moral  development  are  two  essential 
purposes  of  government,  let  us  see  w^here  the  saloon  ranks 
among  social  and  political  institutions.  Let  us  compare  it  with 
other  influences  and  forces,  to  determine  its  effect  upon  the 
public  welfare.     Let  us  apply  the  ordinary  tests. 


I.     Intelligence. 

Intelligence  is  one  of  the  essentials  of  citizenship.  What 
man  ever  gave  even  one  year  of  his  life  to  the  best  saloon  in 
the  State,  and  came  out  at  the  end  of  the  year  with  as  high 
intellectual  ambitions  as  he  had  when  he  began?  Does  the  saloon 
run  a  night  school  to  educate  the  heads  of  its  patrons?  Does 
the  young  man  who  comes  home  late  at  night  from  that  in- 
stitution, come  home  with  a  deeper  love  of  learning  in  his  breast 
and  a  determination  to  drink  deep  at  the  fountain  of  knowledge, 
and  make  himself  a  scholar  among  men?  You  never  yet  saw  a 
saloon  that  produced  such  an  effect  upon  the  human  mind, 
and  you  have  no  sane  reason  to  believe  that  you  ever  will. 
Whatever  intelligence  the  citizen  may  possess,  he  has  acquired 
in  spite  of  the  saloon,  and  not  because  of  it.  Therefore,  the  sa- 
loon wholly  fails  to  fulfill  the  intellectual  requirements  of  citi- 
zenship. 

2.     Morality. 

Morality  is  another  essential  of  citizenship.  Let  me  ask 
you,  what  man  ever  gave  one  year  of  his  life  to  the  best  saloon 
in  the  state,  and  came  out  at  the  end  of  the  year  with  as  high 
moral  aspirations  as  he  had  when  he  began?  Does  the  saloon 
run  a  Bible  Class  to  elevate  the  morals  of  its  patrons;  does  the 
father  who  comes  home  from  the  saloon  late  at  night,  come 
home  with  a  warmer  love  in  his  breast  for  his  family,  and  a 
broader  charity  that  would  bring  the  whole  world  to  the  Master? 
You  never  yet  saw  a  saloon  which  produced  such  an  effect  upon 
the  human  soul  and  you  have  no  sane  reason  to  believe  that  you 
ever  will. 

These  men,  uncontrolled  by  principle,  unhampered  by  con- 
viction and  impelled  by  their  greed  for  gold,  go  blindly  on  de- 
stroying the  moral  character  of  our  people,  apparently  without 
thinking  that  unless  they  are  in  some  way  prevented  from  con- 
trolling public  affairs,  their  own  lives,  liberty  and  property  would 
soon  be  destroyed  by  the  very  men  whom  their  business  has  pro- 
duced. The  morality  which  they  are  every  day  destroying  is 
the  great  force  which  every  day  saves  them  from  destruction. 
The  prevailing  tendency  of  the  saloon,  and  its  attendant  habits 
and  associations  is  to  make  the  citizen  less  fitted  to  govern  him- 
self. Therefore  the  saloon  utterly  fails  to  meet  the  moral  re- 
quirements of  citizenship. 

3.    Judicial  Opinion  of  the  Saloon. 
The  foregoing  arguments  may  be  called  common  place.    We 
have  heard  such  arguments  all  our  lives.    They  are  such  argu- 

10 


ments  as  ministers  and  women  advance.  Some  citizen  who  puts 
business  above  patriotism  and  revenue  above  morals,  may  de- 
mand more  practical  and  less  effeminate  reasons.  Without  dis- 
paraging these  arguments  against  the  saloon  and  without  conced- 
mg  that  any  stronger  and  better  reasons  are  needed,  let  us  seek 
another  line  of  authority,  not  open  to  the  criticism  that  it  is  fem- 
inine or  ministerial. 

The  Appellate  Courts  of  the  various  states,  and  the  Supreme 
Court  of  the  United  States  are  not  religious  bodies,  nor  temper- 
ance organizations,  nor  reform  or  agitation  societies.  They  are 
judicial  tribunals  engaged  in  the  high  vocation  of  settling  ques- 
tions w^hich  other  people  have  agitated.  There  is  not  a  preacher, 
nor  a  woman,  nor  a  paid  advocate  nor  a  professional  reformer  on 
any  of  these  judicial  tribunals.  These  judges  are  all  lawyers. 
Lawyers  as  a  class  are  not  fanatics  on  moral  questions.  Judges 
are  only  lawyers  elevated  to  the  bench.  The  general  character- 
istic of  judges  is  that  they  are  conservative,  rather  than  radical, 
because  they  are  constantly  required  to  look  backward  for  pre- 
cedents for  every  forward  step.  Their  decisions  are  not  based  on 
dreams  or  prophecies  of  the  future,  but  on  the  tested  wisdom  of 
the  past. 

These  courts  and  judges  are  not  partisan  advocates  of  any 
cause,  but  pronounce  their  judgments  under  a  solemn  oath  to 
be  impartial.  As  a  class,  they  are  men  of  good  intelligence,  com- 
paring favorably  with  the  intelligence  of  those  engaged  in  the 
liquor  business,  and  their  judicial  declarations  are  entitled  to 
much  respect.  If  we  can  justify  this  warfare  against  the  saloon 
on  the  doctrines  of  these  courts,  we  are  on  safe  and  sane  grounds. 

(a.)     Opinions  of  State  Courts. 

Let  us,  therefore,  examine  some  of  these  judicial  declara- 
tions. 

Nebraska. 
"Laws  regulating  and  prohibiting  the  manufacture  and  sale 
of  intoxicating  liquors  are  regarded  as  police  regulations,  passed 
for    the    prevention    of   idleness,    drunkenness,    pauperism    and 
crime." — Tredway  v.  Riley,  32  Neb.  495. 

Maryland. 

"The  habit  of  drunkenness  and  the  evils  attendant  upon  it, 
have  always  received  a  considerable  degree  of  attention  from 
the  law  making  power.  And  when  we  consider  the  poverty,  mis- 
ery, ruin  and  wretchedness  which  intoxication  entails  upon  its 

II 


unhappy  victims,  and  the  unspeakable  woes  which  must  be  en- 
dured by  helpless  and  innocent  beings  dependent  upon  them,  and 
also  the  frequent  crimes  and  disorders  produced  by  the  same 
cause,  we  may  measure  in  some  degree  the  necessity  for  a  leg- 
islative remedy,  if  one  can  be  found.  Every  consideration  con- 
nected with  the  public  welfare  imperatively  demands  it." — 
Trageser  v.  Gray,  'jz  Md.  250. 

Kansas. 

"Intoxicating  liquor  is  the  prolific  cause  of  disease,  misery^ 
pauperism,  vice  and  crime.  Its  power  to  weaken,  corrupt,  de- 
bauch and  slay  human  character  and  human  life  is  not  destroyed 
or  impaired  because  it  may  be  susceptible  of  some  innocent  uses, 
or  may  be  used  with  propriety  on  some  occasions.  The  healthy 
morals,  peace  and  safety  of  the  community  at  large  are  still 
threatened." — Durien  v.  State,  80  Pac.  Rep.  987.     State  v.  Durien. 

South  Carolina. 

"Liquor,  in  its  nature,  is  dangerous  to  the  morals,  good 
order,  health  and  safety  of  the  people,  and  is  not  to  be  placed 
upon  the  same  footing  with  the  ordinary  commodities  of  life,, 
such  as  corn,  wheat,  cotton,  tobacco,  potatoes,  etc." — State  v. 
Aiken,  26  L.  R.  A.  345. 

Illinois. 

"We  presume  no  one  would  have  the  hardihood  to  contend 
that  the  retail  sale  of  intoxicating  drinks  does  not  tend,  in  a 
large  degree,  to  demoralize  the  community,  to  foster  vice,  pro- 
duce crime  and  beggary,  want  and  misery." — Schwuchow  v. 
Chicago,  68  111.  444. 

Indiana. 
"The  evils  which  attend  and  inhere  in  the  business  of  hand- 
ling and  selling  intoxicating  liquors  are  universally  recog- 
nized, and  the  danger  therefrom  to  the  peace  and  good  order  of 
the  community  everywhere  necessitates  the  exercise  of  the 
police  power." — Schmidt  v.  City,  80  N.  E.  dz'^- 

Iowa. 

"An  enumeration  of  all  the  evils  arising  from  the  use  of 
intoxicating  liquors  need  not  be  attempted.  They  are  numerous 
and  affect  the  people  collectively  and  individually.  Idleness, 
poverty,  pauperism,  crime,  insanity,  disease,  and  the  destruc- 
tion of  human  life,  follow  indulgence  in  the  habit  of  using 
intoxicating    drinks.      Millions    of    our    fellow-countrymen    are 

12 


addicted  to  this  habit,  and  of  these,  millions  become  drunkards. 
Homes  are  broken  up  and  domestic  peace  is  destroyed  by- 
drunkenness.  The  prisons,  almshouses,  and  institutions  for  the 
care  of  orphans,  insanity  and  affliction,  are  largely  filled  by  the 
vice.  *  *  *  *  Thinking  men  of  this  day  largely  concur  in 
the  opinion  that  the  influence  of  the  saloon,  and  the  idleness  and 
vice  of  the  multitude  of  its  clientage,  constitute  the  great  peril 
of  American  institutions.  We  think  none  will  deny  that  nothing 
but  evil  flows  from  this  source." — Pearson  v.  International  Dis- 
tillery, 72  laa.  348.  See  Also  Santo  v.  State,  2  Iowa  165,  63  Am. 
Dec.  491. 

Ohio. 

In  Adler  v.  Whitbeck,  44  O.  S.  568,  the  court  says  that  the 
traffic  is  "the  acknowledged  source  of  much  of  the  crime  and 
pauperism  of  the  state." 

Michigan. 

"The  public  evils  of  the  intemperate  use  of  ardent  spirits, 
which  are  the  results  of  an  unrestricted  use  of  them,  are  denied 
by  none.  The  evil  extends  to  all  classes  of  society,  and  adheres 
to  our  race  with  a  pertinacity  and  fatality  that  would  satisfy  the 
mind  of  the  most  skeptical  that  the  evil  at  least,  if  not  the 
remedy  proposed,  was  constitutional.  It  has  long  been  the 
subject  of  deep  and  anxious  study,  both  with  the  philanthropist 
and  the  statesman,  by  what  means,  if  any,  the  evil  could  be 
abated." — People  v.  Gallagher,  4  Mich.  256. 

California. 

The  saloon  business  is  "a  business  in  itself  dangerous  to  the 
morals  and  good  order  of  the  city." — Foster  v.  Police  Commis- 
sioners, 102  Cal.  483. 

Idaho. 

"It  is  recognized  and  also  is  a  well-known  fact  in  history  that 
much  evil  results  from  the  sale  of  intoxicating  liquors.  *  *  *  * 
The  business  of  selling  intoxicating  liquors  is  not  considered 
as  of  equal  dignity,  respectability  and  necessity  as  that  of  the 
grocery,  dry-goods  or  clothing  business  or  many  other  occu- 
pations that  might  be  mentioned,  and  from  time  immemorial  its 
prohibition  or  regulation  has  been  held  to  be  within  legislative 
power  under  what  is  known  as  police  power." — State  v.  Callo- 
way, II  Idaho  719,  114  Am.  St.  Rep.  296. 

13 


Colorado. 

"These  restraints  are  not  like  such  as  restrict  the  ordinary 
avocations  of  life,  which  advance  human  happiness,  or  trade  and 
commerce — that  neither  produce  immorality,  suffering  nor 
want.  This  business  is,  on  principle,  within  the  police  powers  of 
the  state,  and  restrictions  which  may  rightfully  be  imposed  upon 
it  might  be  obnoxious  as  an  illegal  restraint  of  trade  when  ap- 
plied to  other  pursuits." — Adams  vs.  Cronin,  29  Colo.  488. 


(b.)     United  States  Supreme  Court. 

The  foregoing  expressions  by  the  State  Courts  are  not  only 
approved,  but  impregnably  fortified  by  the  United  States  Su- 
preme Court. 

In  the  License  cases,  decided  in  1847,  5  How.  504,  12  L.  C. 
Ed.  314,  Justice  Grier  said:  "It  is  not  necessary  for  the  sake  of 
justifying  the  State  legislation  now  under  consideration,  to 
array  the  appalling  statistics  of  misery,  pauperism  and  crime, 
which  have  their  origin  in  the  use  or  abuse  of  ardent  spirits." 

In  the  case  of  Mugler  v  Kansas,  8  Sup.  Ct.  Rep.  297,  Mr. 
Justice  Harlan  says:  "We  can  not  shut  out  of  view  the  fact, 
within  the  knowledge  of  all,  that  the  public  health,  the  public 
morals,  and  the  public  safety,  may  be  endangered  by  the  gener- 
al use  of  intoxicating  drinks;  nor  the  fact  established  by  statis- 
tics accessible  to  every  one,  that  the  idleness,  disorder,  pauper- 
ism, and  crime  existing  in  the  country,  are,  in  some  degree,  at 
least,  traceable  to  this  evil." 

These  cases  all  lead  up  to  the  case  of  Crowley  v.  Christen- 
sen,  137  U.  S.  86,  11  Sup.  Court  Rep.  13,  which  is  the  most 
crushing  blow  ever  given  to  the  liquor  traffic  by  any  judicial 
tribunal.    Among  other  things,  the  Court  said: 

"By  the  general  concurrence  of  opinion  of  every  civilized 
and  Christian  community,  there  are  few  sources  of  crime  and 
misery  to  society  equal  to  the  dram  shop,  where  intoxicating 
liquors,  in  small  quantities,  to  be  drunk  at  the  time,  are  sold 
indiscriminately  to  all  parties  applying.  The  statistics 
of  every  State  show  a  greater  amount  of  crime  and  misery  at- 
tributable to  the  use  of  ardent  spirits  obtained  at  these  retail 
liquor  saloons  than  to  any  other  source."  *  *  *  *  There  is  no 
inherent  right  in  a  citizen  to  sell  intoxicating  liquors  by  retail, 
it  is  not  a  privilege  of  a  citizen  of  the  state  or  of  a  citizen  of  the 
United  States." 

14 


SOME  OBSERVATIONS  UNDER  THESE  OPINIONS. 

1.  The  liquor  people  complain  bitterly  of  this  language 
of  the  Supreme  Court,  and  charge  that  the  Court  never  used 
such  language  as  that  about  any  other  business.  This  is  true, 
and  there  are  the  best  of  reasons  for  it. 

The  Court  never  used  such  language  as  that  in  regard  to 
a  meat  shop,  for  example,  because  no  man  ever  went  to  a  meat 
shop  and  bought  tenderloin  steak  until  he  got  drunk  and  went 
home  and  kicked  his  wife  and  children  into  the  street.  The 
Court  never  used  such  language  as  that  in  regard  to  the  dry 
goods  business,  because  no  man  ever  bought  silks  and  calicoes 
for  his  family  until  he  became  a  moral  vagabond  and  went  out 
on  the  street  on  election  day  and  sold  his  vote  for  fifty  cents 
or  a  few  drinks  of  whiskey. 

The  Court  applies  such  language  only  to  such  business  as 
injures  public  morals  by  destroying  the  character  of  our 
citizens. 

2.  The  strength  and  influence  of  these  judicial  opinions 
consist  substantially  in  the  following  facts: 

(i)  These  judges  are  intelligent  men.  They  know  the  ef- 
fect of  intoxicants  upon  men  personally  and  collectively. 

(2)  These  judges  are  impartial.  They  not  only  have  no 
financial  interest,  as  a  rule,  in  the  business  under  consideration, 
but  they  are  under  a  solemn  oath  to  proclaim  and  enforce  impar- 
Hally  the  law  of  the  land. 

(3)  These  judges  thus  declare  the  law  without  any  per- 
sonal or  selfish  ends  in  view,  although  they  know  that  by  so  do- 
ing they  are  inviting  the  vindictive  opposition  of  the  liquor 
vote.  They  do  not  render  these  opinions  for  the  love  of  making 
political  enemies,  but  out  of  a  high  regard  for  the  public  wel- 
fare, regardless  of  the  political  enemies  they  may  make. 

(4)  These  opinions  are  grounded  in  the  truth,  as  intelli- 
gent men  know  the  truth  today.  These  declarations  express  the 
concurrence  of  opinion  of  every  civilized  and  Christian  commun- 
ity. 

(5)  The  principles  of  intelligence  and  morality  upon  which 
these  opinions  are  founded,  are  the  very  essentials  of  govern- 
ment. A  free  people  must  be  moral  enough  to  be  honest  and 
just. 

(6)  By  the  deliberate  edicts  of  these  high  courts  of  sover- 
eign states,  and  by  the  crushing  denunciation  of  the  highest 
court  in  Christendom,  the  common  saloon  of  today  is  declared 
to  be  a  source  of  crime  and  misery  to  society.  These  judicial 
opinions  are  a  part  of  the  common  law  of  the  nation. 

15 


When  a  liquor  manufacturer  or  dealer  denounces  these  opin- 
ions as  unwarranted  by  the  facts,  or  as  over-severe  in  their 
moral  tests,  and  assumes  to  advise  as  to  What  is  best  for  the 
public  welfare,  you  must  remember  that  there  are  at  least  two 
strong  presumptions  against  him. 

(i)  There  is  the  presumption  of  self-interest,  because 
many  of  them  have  large  fortunes  invested  in  the  business,  and 
many  others  make  their  bread  and  butter  out  of  the  business. 
Such  interest  as  that  is  apt  to  color  testimony.  They  may  be 
swearing,  but  they  are  not  under  oath,  and  absolute  verity  does 
not   attach   to  their   declarations. 

(2)  There  is  the  presumption  of  moral  disregard  for  the 
manner  in  which  they  make  money,  because  they  know,  and  in 
all  their  defensive  arguments  admit,  that  the  liquor  business  is 
not  uplifting.  The  ablest  advocate  of  the  liquor  cause  never 
advances  any  plea  for  its  continuance  which  claims  for  the 
traffic  any  positive  moral  good,  or  which  rises  above  expediency, 
or  the  alleged  vested  rights  of  a  moral  wrong,  and  neither  ex- 
pediency nor  any  of  these  so-called  vested  rights  is  essential 
or  fundamental  to  the  public  welfare.  The  public  welfare  is 
better  promoted  by  their  absence  than  by  their  presence. 

These  high  judicial  authorities  ought  at  least  to  be  per- 
suasive to  the  average  citizen  seeking  guidance  on  a  serious 
subject  of  public  importance.  The  average  liquor  dealer,  whole- 
sale or  retail,  in  devotion  to  the  public  welfare,  does  not  rank 
with  our  appellate  courts.  Any  citizen  honestly  vexed  with 
questions  or  doubts  in  regard  to  a  proper  policy  toward  sources 
of  crime  and  misery  ought  not  to  hesitate  to  follow  the  opinions 
of  our  courts  rather  than  to  follow  the  opinions  of  our  saloon- 
keepers. 

4.     Organized  Political  Power. 

The  liquor  business  is  also  an  organized  political  power, 
dictating  policies  as  far  as  possible.  The  brewers  have  their 
State  Association.  The  retail  dealers  have  their  State  Liquor 
League,  and  all  branches  of  the  liquor  trade  are  represented 
in  the  Personal  Liberty  League.  The  Brewers  Association, 
the  Liquor  League,  and  Liberty  League  may  have  some  laud- 
able purposes,  but  if  so,  those  purposes  are  seldom  manifest 
to  the  public.  And  every  manifestation  of  any  good  purpose 
always  has  a  selfish  end. 

The  published  purposes  of  the  Ohio  Liquor  League  are 
thus  stated  in  their  constitution: 

16 


"It  shall  make  all  possible  effort  to  get  into  its  folds  all 
of  the  respectable  liquor  dealers  of  the  State  of  Ohio.  Its  object 
shall  be  mutual  protection.  It  will  protect  its  members  against 
unjust  persecution  as  far  as  possible.  It  will  strive  to  place  in 
public  office  men  who  are  known  to  be  fair  and  liberal  minded." 

Note  their  three  fold  object:  To  get  the  respectable  deal- 
ers together,  to  protect  its  members  against  unjust  persecution 
and  to  place  in  office  fair  and  liberal  minded  men. 

Their  respectable  saloonkeepers  will  be  hard  to  find,  since 
the  United  States  Supreme  Court  has  said  of  the  best  of  them, 
that  their  places  of  business  are  sources  of  crime  and  misery  to 
society.  Respectability  cannot  accrue  merely  from  a  collection 
of  these  sources  of  crime  and  misery. 

When  their  constitution  says  they  are  organized  to  protect 
themselves  against  unjust  persecution  they  mean  that  the 
Liquor  League  is  organized  to  defend  its  members  against 
all  prosecutions  for  violation  of  law.  And  when  they  proclaim 
that  they  will  strive  to  place  fair  and  liberal  minded  men  in 
office,  they  mean  that  they  will  put  in  office  men  who  will  not 
enact  new  laws  against  them,  nor  enforce  the  laws  which  we 
already   have. 

The  purposes  of  the  Personal  Liberty  League  are  thus 
stated:  "We  declare  our  opposition  to  men  and  meas!ires  that 
favor  sumptuary  or  restrictive  legislation  which  encroaches 
upon  or  curtails  the  personal  liberties  of  our  people." 

In  language  such  as  the  above,  the  Ohio  organizauons 
declare  their  political  purposes.  The  purposes  of  the  liquor 
combinations  in  other  states  are  essentially  the  same,  though 
the  avenues  of  their  activities  may  vary  under  different  cir- 
cumstances and  local  conditions. 

But  the  essential  purposes  of  these  liquor  organizations 
and  their  activities  in  politics  may  be  reduced  to  three  heads, 
viz: 

1.  To  prevent  legislation  for  the  protection  of  public 
morals. 

2.  To  defeat  men  for  executive  offices  who  will  enforce  the 
law  against  them. 

3.  To  carry  local  option  and  other  elections  in  favor  of  the 
saloons. 

Moral  reform  is  not  the  main  purpose  of  these  organiza- 
tions, only  a  mere  incident.  Reform  was  not  thought  of,  until 
they, were  convinced  by  the  flashes  of  lightning  and  the  crash 
of  thunder  that  a  storm  was  raging.  Now  the  National  Brew- 
ers Association  and  some  of  the  State   Brewers  Associations, 

17 


and  the  Model  License  League  have  declared  in  somewhat  sim- 
ilar language  that  they  are  in  favor  of  making  the  liquor  busi- 
ness more  respectable  and  in  some  instances  the  brewers  have 
caused,  or  co-operated  in  causing,  some  dive  keepers  to  be  ar- 
rested. These  occasional  efforts  at  decency  should  be  given 
their  full  value.  The  chief  purpose  in  them,  however,  is  to  cut 
off  the  worst  part  of  their  own  business  in  order  that  the  peo- 
ple may  not  so  soon  become  entirely  disgusted  with  the  best 
part  of  it.  These  dives,  however,  are  the  necessary  and  legiti- 
mate end  of  any  business  which  is,  at  its  best,  a  source  of  crime 
and  misery  to  society.  The  brewers  cannot  clean  up  much 
without  cutting  down  their  profits  and  you  need  not  expect 
them  to  interfere  perceptibly  with  their  own  'income.  They 
certainly  will  not  destroy  their  own  business.  They 
may  be  found  willing  to  clean  the  teeth  of  the  mad-dog  that 
his  rabid  bite  may  not  produce  the  quickest  possible  death,  but 
they  will  never  assist  in  killing  the  dog. 

The  brewers  rush  into  this  reform  of  shutting  up  the  dives 
with  about  as  much  enthusiasm  and  soul  hunger  as  you  would 
manifest  in  going  to  the  hospital  to  have  a  diseased  leg  cut  off. 
You  would  do  that  only  when  convinced  that  the  operation  was 
necessary  to  save  life.  The  brewers  have  about  reached  that 
Ftage  of  desperation. 

But  do  not  brewers  and  liquor  dealers  often  contribute  to 
local  hospitals  and  other  charities?  Grant  it,  and  give  full 
credit  for  all  they  do.  Do  they  by  these  gifts,  justify  the  public 
sanction  of  their  sources  of  crime  and  misery?  Do  they  do  as 
much  good  by  their  charities  as  they  do  harm  by  their  sources 
of  crime  and  misery?  Until  the  good  at  least  equals  the  bad, 
the  weight  of  the  argument  is  against  them.  It  does  not  profit 
to  sanction  so  much  evil  that  a  little  good  may  come.  Besides, 
if  they  devoted  their  personal  energies  and  business  careers  to 
some  other  and  harmless  line  of  business  they  could  have  as 
much  money  for  charities  and  not  get  it  out  of  sources  of  crime 
and  misery. 

The  latest  organization  of  the  liquor  forces  is  under  the 
name  of  the  Personal  Liberty  League.  The  Liberty  League  is 
a  sort  of  a  trust,  or  combination,  of  the  other  liquor  organiza- 
tions of  the  country.  It  does  the  same  work  formerly  done  by 
the  Brewers*  Association,  and  the  Liquor  League.  It  is  the  old 
fee  under  a  new  name.  The  Brewers'  Association  and  Liquor 
League  lost  so  many  battles  of  late  years  that  a  new  alignment 
became  necessary. 

In  adopting  this  new  name,  they  showed  their  common  dis- 

i8 


regard  for  sacred  things.  Liberty  has  meant  more  than  property 
and  life  to  many  a  loyal  patriot,  for  both  property  and  life  have 
been  freely  given  on  many  a  red  battlefield  that  liberty  might 
live.  The  tree  of  liberty  has  ever  been  watered  by  the  blood 
of  patriots.  Liberty  always  hath  charms  for  any  people,  slave 
or  free.  So  the  liquor  advocates  laid  their  unholy  hands  upon 
that  sacred  word  and  sought  to  stampede  the  people  to  their 
standard  on  an  appeal  for  liberty.  Thus,  like  the  hypocrite  in 
Pollok's  "Course  of  Time,'  they 

"Stole  the  livery  of  the  court  of  Heaven 
To  serve  the  devil  in;  in  virtue's  guise 
Devoured  the  widow's  house  and  orphan's  bread." 

To  have  such  institutions  as  saloons  in  the  State  is  bad 
enough;  to  have  them  organized  for  political  purposes  is  infin- 
itely worse.  A  horse  thief,  or  a  wife  beater,  arouses  your  horror 
when  you  encounter  them,  one  at  a  time,  but  suppose  all  the 
horse  thieves  in  the  State  should  organize  a  horse  thief's  league 
for  their  mutual  protection,  and  to  elect  fair  and  liberal  minded 
men  to  office. 

Suppose  all  the  wife  beaters  of  the  State  should  organize 
a  wife  beater's  association  which  should  attempt  to  manipulate 
politics  so  as  to  protect  all  who  exercise  the  personal  liberty 
of  beating  their  wives.  Suppose  now  those  two  organizations, 
on  being  complained  of,  should  propose  to  pay  the  government 
a  fixed  sum  as  a  tax  for  the  privilege  of  doing  business:  An 
outraged  public  sentiment  would  make  short  work  of  both 
organizations. 

These  liquor  organizations  never  support  a  candidate  for 
office  who,  in  their  opinion,  will  enforce  the  liquor  laws  that  we 
already  have,  or  who  will  pass  new  and  stronger  ones.  They 
are  fighting  that  their  sources  of  crime  and  misery  may  be  left 
undisturbed.  They  care  nothing  for  the  public  welfare,  or  they 
would  voluntarily  retire  from  a  business  Which  is  a  source 
of  crime  and  misery — from  a  business  which  is  everywhere  det- 
rimental to  public  morals.  They  at  all  times  refuse  to  promote 
the  general  welfare  by  protecting  public  morals  and  declare  by 
their  conduct  that  they  think  it  better  to  protect  the  saloons, 
these  sources  of  crime  and  misery,  than  it  is  to  protect  our 
homes  and  our  churches,  the  hope  and  life  of  this  nation. 

Not  only  do  these  liquor  organizations  care  nothing  for  the 
public  welfare,  but  they  have  no  party  principles.  One  year 
they  are  Democrats,  the  next  year  Republicans.     Their  party 

19 


affiliations  are  never  determined  by  political  issues  but  by  im- 
moral considerations.  In  the  same  election,  they  support  one 
party  in  one  county  and  the  other  parly  in  the  adjoining  county. 
They  always  give  their  support  to  the  candidate  who  favors 
their  sources  of  crime  and  misery,  or  who  seems  least  likely  to 
enforce  the  law  against  them.  Their  influence  is  always  on  the 
side  of  bad  political  morals.  No  man  ever  ran  for  office  on  a 
platform  of  common  decency  and  law  enforcement,  who  did 
not  incur  their  organized  opposition.  They  are  always  a  thorn 
in  the  flesh  to  every  man,  who  would  seek  office  on  honorable 
moral  grounds,  and  nothing  will  so  effectually  break  the  power 
of  the  saloon  in  politics  as  for  all  patriotic  men  of  all  parties 
to  join  hands  and  put  them  all  out  of  business. 

Further  Specifications  Not  Necessary. 

These  fundamental  arguments  against  the  saloon  might  be 
amplified  in  detail  by  showing  the  amount  of  crime,  the  amount 
of  pauperism,  the  amount  of  insanity  which  can  fairly  be  attri- 
buted to  the  saloon  business.  To  that  might  be  added  be- 
wildering statistics  as  to  the  millions  of  money  annually  wasted 
by  drinkers  and  the  millions  more  expended  by  the  public  in 
the  work  of  law  enforcement  and  charity. 

A  detailed  discussion  of  these  matters  might  be  profitable, 
but  for  the  purposes  of  this  argument  it  will  not  be  necessary 
to  go  into  detail.  Statistics  are  a  fruitful  source  of  controversy. 
It  ,is  an  old  adage  that  figures  will  not  lie,  but  many  a  lie  has 
been  told  with  figures,  and  there  is  so  much  of  indisputable 
argument  ready  at  hand  against  the  traffic,  that  we  need  not 
argue  points  on  which  disputes  might  arise. 

All  rnust  admit  that  a  material  amount  of  crime  and  misery 
and  pauperism  and  insanity  flow  from  the  traffic,  that  a  material 
amount  of  money  is  thus  wasted  by  the  drinking  part  of  our 
population  and  that  a  material  amount  is  spent  by  the  govern- 
ment in  law  enforcement  and  charity,  that  would  not  be  thus 
wasted  and  expended  except  as  a  result  of  the  traffic.  This  is 
sufficient  to  justify  our  attack  on  the  saloon  business.  A  mater- 
ial amount  of  crime  and  misery  is  more  than  any  man  has  a 
right  to  ask  us  to  stand.  Whether  the  traffic  causes  all  that 
some  people  charge  against  it  or  not,  yet  any  crime,  and  any 
misery,  are  more  than  the  public  is  bound  to  bear.  A  source  of 
crime  and  misery  can  have  no  right  to  an  existence,  even  for 
a  day,  or  to  any  material  extent. 

In  the  case  of  Mugler  v.  Kansas,  already  cited,  the  Unitcvi 

ao 


States  Supreme  Court  said  it  was  not  necessary  for  the  sake 
of  justifying  the  Kansas  Prohibition  law,  to  array  the  appalling 
statistics  of  misery,  pauperism  and  crime  which  have  their  ori- 
gin in  the  use  or  abuse  of  ardent  spirits,  and  that  the  public 
health,  public  morals  and  public  safety  may  be  endangered  by 
the  general  use  of  liquors,  and  that  idleness,  pauperism  and 
crime  are,  in  some  degree  at  least,  traceable  to  this  evil.  The 
court  does  not  ask  how  much  idleness,  pauperism  and  crime  can 
be  traced  to  this  evil,  nor  fix  the  percentage  of  disease,  pauper- 
ism and  crime  that  must  be  proved  against  the  traffic  before 
prohibitory  laws  will  be  justified.  If  idleness,  disorder,  pauper- 
ism and  crime  are  in  some  material  degree  traceable  to  this  evil, 
that  is  a  sufficient  warrant  for  the  public  to  defend  itself  against 
such  sources  of  injury. 

Conclusions. 

In  the  light  of  these  principles  and  facts,  what  is  the  place 
of  the  saloon  in  society  and  government?  Where  should  you 
class  an  institution  that  discourages  intellectual  development? 
Where  should  you  class  an  institution  that  nibbles  away  by 
stealth  the  morals  of  its  patrons?  Where  would  you  class  a 
great  commercial  enterprise  which  is  branded  by  the  highest 
court  of  the  land  as  a  source  of  crime  and  misery?  Where 
would  you  class  an  organized  political  power  that  never  stood 
for  a  moral  proposition  in  the  history  of  the  state  and  nation? 

The  Mayor  of  Milwaukee  and  Chairman  Dickey  of  the  Pro- 
hibition Party  held  a  couple  of  joint  debates  a  few  months  ago 
to  discuss  the  question  whether  it  was  right  to  prohibit  the 
sale  of  intoxicating  liquors.  Any  man  ought  to  be  able  to  ans- 
wer that  question  who  has  mental  capacity  to  decide  whether 
it  is  right  to  shut  up  a  source  of  crime  and  misery. 

DEFENSES  BY  THE  SALOON. 

Let  us  now,  in  the  light  of  these  principles  of  government 
and  under  these  ideals  of  the  public  welfare,  examine  the  more 
common  defenses  put  forth  by  the  saloon  and  its  friends. 

I.     Personal  Liberty. 

One  argument  put  forth  by  the  liquor  advocate  is  that 
prohibition  interferes  with   their  personal  liberty. 

What  do  they  mean  by  these  two  words  "personal  liberty?'* 
When  the  words- are  used  by  liquor  dealers  or  manufacturers, 

21 


they  may  mean  that  we  have  no  right  to  interfere  with  their 
business,  regardless  of  its  effect  upon  the  general  welfare.  That 
proposition  will  be  discussed  under  a  subsequent  subdivision  of 
this  argument. 

When  the  words  "personal  liberty"  are  used  by  the  individ- 
ual dealer  or  by  some  one  in  his  behalf,  they  mean  that  the  in- 
dividual claims  the  right  to  drink  when,  where  and  what  he 
pleases,  and  as  much  as  he  pleases,  and  that  saloons  should  be 
permitted  to  run  for  his  personal  convenience  and  the  gratifi- 
ration  of  his  desire  to  drink.  His  demand  is  that  we  should 
leave  the  saloon  undisturbed,  regardless  of  the  effect  upon  the 
public  welfare. 

This  proposition  of  the  liquor  people  receives  but  scant 
consideration  in  rural  communities  and  among  native  born 
American  people,  but  in  our  large  cities  and  among  people  of 
foreign  birth  or  with  foreign  blood,  the  situation  is  materially 
different.  And  since  our  hardest  battles  are  yet  to  be  fought 
and  since  these  battles  will  of  necessity  take  place  in  these  big 
cities  and  among  our  citizens  of  foreign  birth  and  extraction,  a 
careful  examination  of  the  proposition  is  expedient. 

As  an  introductory  observation  il  may  be  stated  that  we  are 
not  in  this  agitation  seeking  to  deprive  a  man  of  his  beverage 
privileges  in  his  own  home  nor  to  interfere  with  his  personal 
liberty  to  keep  liquor  at  home,  provided  his  home  does  not  be- 
come a  place  of  public  resort.  We  are  striking  primarily  at  the 
open  public  saloon  as  a  social  and  political  evil,  but  if,  as  an 
incident  to  closing  up  these  sources  of  crime  and  misery,  it 
becomes  inconvenient  for  the  drinking  citizen  to  keep  his  liquor 
in  his  home,  he  must  submit  to  that  light  affliction  for  the  pub- 
lic good. 

As  an  answer  to  the  merits  of  the  controversy,  we  claim 
that  these  advocates  of  personal  liberty  have  a  mistaken  notion 
of  the  legitimate  scope  of  personal  liberty  as  defined  by  the 
statutes  and  the  court  decisions  in  this  country.  A  few  ex- 
tracts from  judicial  opinions  will  show  how  much  personal  lib- 
erty a  citizen  really  has. 

Blackstone's  definition  of  personal  liberty,  as  quoted  by 
Justice  Harlan  in  the  Civil  Rights  Cases,  3rd  Sup.  Ct.  Rep.  42, 
is  as  follows: 

"Personal  liberty  consists  in  the  power  of  locomotion,  of 
changing  situation,  of  removing  one's  person  to  whatever  place 
one's  own  inclination  may  direct,  without  restraint,  unless  by 
'hie  course  of  law/* 

The  Supreme  Court  of  Michigan,  in  the  case  of  Pinkerton 

22 


vs.  Verberg,  78  Mich.  573,  18  Am.  St.  Rep.  473,  defines  the  phrase 
as  follows: 

"Personal  liberty  *  *  *  *  consists  of  the  right  of  locomo- 
tion— to  go  where  one  pleases  and  when — and  to  do  that  which 
may  lead  to  one's  business  or  pleasure — only  so  far  restrained 
as  the  rights  of  others  may  make  it  necessary  for  the  welfare 
of  all  other  citizens." 

In  the  case  of  Board  of  Excise  vs.  Barrie,  34  N.  Y.  657,  decided 
in  1866,  several  defendants  appealed  from  a  conviction  for  selling 
liquor  without  a  license,  claiming  that  the  law  was  invalid.  The 
court  said: 

"Is  it  not  an  absurd  proposition,  that  such  a  law  by  its  own 
mere  force  deprives  any  person  of  his  liberty  or  property,  within 
the  meaning  of  the  constitution,  or  that  it  infringes  upon  either 
of  these  secured  private  rights? 

"Yet  this  is  the  only  ground  its  violators  can  occupy  to  raise  any 
question  as  to  its  validity.  They  are  restrained  of  no  liberty,  ex- 
cept that  of  violating  the  law  by  engaging  in  a  forbidden  traffic; 
and  the  assumption  is  not  even  plausible  that  the  act  works  a  de- 
privation of  property  to  any  one  within  the  meaning  of  the  consti- 
tutional restrictions  upon  legislative  authority.  *  *  *  *  The  neces- 
sary powers  of  the  legislature  over  all  subjects  of  internal  police, 
being  part  of  the  general  grant  of  legislative  power  given  by  the 
constitution,  cannot  be  sold,  given  away  or  relinquished.  Irrevocable 
grants  of  property  and  franchise  may  be  made,  if  they  do  not  impair 
the  supreme  authority  to  make  laws  for  the  right  government  of 
the  state,  but  no  one  legislature  can  curtail  the  power  of  its  suc- 
cessors to  make  such  laws  as  they  may  deem  proper  in  matters  of 
police." 

The  Ohio  Supreme  Court,  in  the  case  of  Palmer  vs.  Tingle,  55 
O.  S.  441,  defines  liberty  as  follows: 

"The  word  'liberty'  as  used  in  the  first  section  of  the  Bill  of 
Rights,  does  not  mean  a  mere  freedom  from  physical  restraint  or 
state  of  slavery,  but  is  deemed  to  embrace  the  right  of  man  to  be 
free  in  the  enjoyment  of  the  faculties  with  which  he  has  been  en- 
dowed by  his  Creator,  subject  only  to  such  restraints  as  are 
necessary  for  the  common  welfare" 

The  same  Court  in  the  case  of  State  vs.  Powell,  58  O.  S.  344, 
says : 

"Liberty,  as  understood  in  this  Country,  is  not  license,  but  lib- 
erty regulated  by  law.  The  personal  liberty  of  every  man  is  sub- 
ject to  such  reasonable  regulations  as,  in  the  wisdom  of  the  legisla- 
ture, are  regarded  as  necessary  to  promote,  not  only  the  peace  and 
good  order  of  society,  but  its  well-being." 

23 


In  the  case  of  State  vs.  Kreutzberg,  114  Wis.  530,  91  Am.  St. 
Rep.  939,  the  Wisconsin  Supreme  Court  says: 

"The  very  existence  of  government  renders  imperative  a 
power  to  restrain  the  individual  to  some  extent.  This  is  called, 
'the  police  power.'  *  *  *  *  gy  j-j^g  constitution  is  granted  the 
police  power — the  power  to  restrain  the  individual  of  some  measure 
of  his  liberty  of  action  and  of  his  property ;  but  this  goes  no  further 
than  to  authorize  the  enactment  of  laws  necessary  to  a  reasonable 
protection  of  the  safety  and  welfare  of  the  general  community,  and 
not  depriving  the  individual  of  liberty  in  the  constitutional  sense. 

*  *  *  *  Absolute  freedom  in  one  is  necessarily  subversive  of 
liberty  for  those  with  whom  he  comes  in  contact,  unless  such 
others  be  strong  enough  to  resist  and  curtail  his  will. 

"The  police  power  of  the  State  is  co-extensive  with  self-pro- 
tection, and  is  not  inaptly  termed  the  law  of  over-ruling  necessity. 
It  may  be  said  to  be  that  inherent  and  plenary  power  in  the  state 
which  enables  it  to  prohibit  all  things  hurtful  to  the  comfort,  safety, 
and  welfare  of  society.  It  is  said  to  be  limited  only  by  the  legisla- 
tive discretion,  provided  its  acts  do  not  go  beyond  the  great  prin- 
ciple of  securing  the  public  safety." 

In  the  case  of  Kentucky  Board  of  Pharmacy  v.  Cassidy,  74 
S.  W.  732,  the  Kentucky  Court  of  Appeals  cites  with  approval  the 
language  of  Mr.  Justice  Field  in  Crowley  v.  Christensen,  137  U.  S. 
89,  to  the  effect  that  liberty  is  not  license  to  act  according  to  one*s 
own  will — "It  is,  then,  liberty  regulated  by  law." 

In  United  States  v.  Hudson,  65  Fed.  Rep.  74,  the  U.  S.  Dist 
Court  for  Arkansas,  by  Parker,  J.,  says: 

"All  the  liberty  we  know  anything  about  under  this  govern- 
ment is  liberty  regulated  by  law.  Everything  else  is  licentiousness, 
because  it  gives  to  each  person  the  right  to  trample  upon  the 
rights  of  all  others." 

In  the  case  of  McLean  v.  Arkansas,  29  Sup.  Ct.  Rep.  208,  Mr. 
Justice  Day  thus  limits  the  liberty  of  the  citizen: 

"The  liberty  secured  by  the  constitution  of  the  United  States 
to  every  person  within  its  jurisdiction  does  not  import  an  absolute 
right  in  each  person  to  be  at  all  times,  and  in  all  circumstances, 
wholly  freed  from  restraint.  There  are  manifold  restraints  to 
which  every  person  is  necessarily  subject  for  the  common  good." 

"It  is,  then,  the  established  doctrine  of  this  court  that  liberty 

♦  *  *  *  is  subject  to  restrictions  passed  by  the  legislative  branch 
of  the  government  in  the  exercise  of  its  powers  to  protect  the 
safety,  health  and  welfare  of  the  people." 

In  Butchers*  Union  Co.  v.  Crescent  City  Co.,  iii  U.  S.  746, 
Field,  J.,  says: 

24 


That  among  the  inalienable  rights  as  proclaimed  in  the  Dec- 
laration of  Independence,  "is  the  right  of  men  to  pursue  any  lawful 
business  or  vocation  in  any  manner  not  inconsistent  with  the  equal 
rights  of  others,  which  may  increase  their  prosperity  or  develop 
their  faculties,  so  as  to  give  to  them  their  highest  enjoyment.  The 
common  business  and  callings  of  life,  the  ordinary  trades  and 
pursuits  which  are  innocuous  in  themselves,  and  have  been  followed 
in  all  communities  from  time  immemorial,  must  therefore  be  free 
in  this  country  to  all  alike  upon  the  same  conditions." 

In  Allgeyer  v.  Louisiana,  165  U.  S.  578,  589,  17  Sup.  Ct.  Rep. 
427,  the  Court  said,  by  Mr.  Justice  Peckham: 

"The  liberty  mentioned  in  that  (fourteenth)  amendment 
means  not  only  the  right  of  the  citizen  to  be  free  from  the  mere 
physical  restraint  of  his  person,  as  by  incarceration,  but  the  term 
is  deemed  to  embrace  the  right  of  the  citizen  to  be  free  in  the  en- 
joyment of  all  his  faculties;  to  be  free  to  use  them  in  all  lawful 
ways;  to  live  and  work  where  he  will;  to  earn  his  livelihood  by 
any  lawful  calling;  to  pursue  any  livelihood  or  avocation;  and  for 
that  purpose  to  enter  into  all  contracts  which  may  be  proper, 
necessary,  and  essential  to  his  carrying  out  to  a  successful  con- 
clusion the  purposes  above  mentioned." 

In  Jacobson  v.  Massachusetts,  25  Sup.  Ct.  Rep.  358,  361,  Harlan 
J.,  says: 

"The  liberty  secured  by  the  constitution  of  the  United  States 
to  every  person  within  its  jurisdiction  does  not  import  an  absolute 
right  in  each  person  to  be,  at  all  times  and  in  all  circumstances, 
wholly  freed  from  restraint.  There  are  manifold  restraints  to 
which  every  person  is  necessarily  subject  for  the  common  good. 
On  any  other  basis  organized  society  could  not  exist  with  safety  to 
its  members.  Society  based  on  the  rule  that  each  one  is  a  law 
unto  himself  would  soon  be  confronted  with  disorder  and  anarchy. 
Real  liberty  for  all  could  not  exist  under  the  operation  of  a  principle 
which  recognizes  the  right  of  each  individual  person  to  use  his  own, 
whether  in  respect  of  his  person  or  his  property,  regardless  of  the 
injury  which  may  be  done  to  others.  This  Court  has  more  than 
once  recognized  it  as  a  fundamental  principle  that  'persons  and 
property  are  subjected  to  all  kinds  of  restraints  and  burdens  in 
order  to  secure  the  general  comfort,  health  and  prosperity  of  the 
^tate ' " 

In  Crowley  v.  Christensen,  137  U.  S.  86,  89,  11  Sup.  Ct.  Rep. 
13  the  U.  S.  Sup.  Court  said:  "The  possession  and  enjoyment  of 
all  rights  are  subject  to  such  reasonable  conditions  as  may  be 
deemed  by  the  governing  authority  of  the  country  essential  to  the 
safety,  health,  peace,  good  order   and  morals  of  the   community. 

25 


Even  liberty  itself,  the  greatest  of  all  rights,  is  not  unrestricted 
license  to  act  according  to  one's  own  will.  It  is  only  freedom  from 
restraint  under  conditions  essential  to  the  equal  enjoyment  of  the 
same  right  by  others.    It  is,  then,  liberty  regulated  by  law." 

Under  these  principles  the  U.  S.  Supreme  Court  25 
Sup.  Ct.  Rep.  358  upheld  a  statute  of  Massachusetts,  which 
required  the  inhabitants  of  a  city  or  town  to  be  vacci- 
)iated  when,  in  the  opinion  of  the  Board  of  Health,  vac- 
cination was  necessary  for  the  public  health  or  the  public 
safety.  The  Court  further  says  :  "Upon  the  principle  of 
self-defense,  of  paramount  necessity,  a  community  has  the  right 
to  protect  itself  against  an  epidemic  of  disease  which  threatens 
the  safety  of  the  members."  *  *  *  "j^  ^^s  the  duty,  of  the 
constituted  authorities  primarily  to  keep  in  view  the  welfare,  com- 
fort and  safety  of  the  many,  and  not  permit  the  interests  of  the 
many  to.be  subordinated  to  the  wishes  or  convenience  of  the  few." 

In  the  Kansas  Prohibition  cases  in  1887,  the  brewers'  attorneys 
argued  that,  having  erected  a  plant  suitable  only  for  the  making  of 
beer,  the  owner  had  the  personal  right  to  manufacture  and  sell  for 
beverage  purposes.  The  court  met  the  argument  fairly  in  this 
language:  "And  so,  if  in  the  judgment  of  the  legislature,  the 
manufacture  of  intoxicating  liquors  for  the  maker's  own  use  as  a 
beverage,  would  tend  to  cripple,  if  it  did  not  defeat,  the  efforts  to 
guard  the  community  against  the  evils  attending  the  excessive  use 
of  such  liquors,  it  is  not  for  the  courts,  upon  their  views  as  to  what 
is  best  and  safest  for  the  community,  to  disregard  the  legislative 
determination  of  that  question.  So  far  from  such  regulation 
having  no  relation  to  the  general  end  sought  to  be  accomplished, 
the  entire  scheme  of  prohibition,  as  embodied  in  the  constitution  and 
laws  of  Kansas,  might  fail,  if  the  right  of  each  citizen  to  manufac- 
ture intoxicating  liquors  f6r  his  own  use  as  a  beverage  were  recog- 
nized. Such  a  right  does  not  inhere  in  citizenship.  Nor  can  it  be 
said  that  government  interferes  with  or  impairs  any  one's  constitu- 
tional rights  of  liberty  or  of  property,  when  it  determines  that  the 
manufacture  and  sale  of  intoxicating  drinks,  for  general  or  indi- 
vidual use,  as  a  beverage,  are,  or  may  become,  hurtful  to  society, 
and  constitute,  therefore,  a  business  in  which  no  one  may  lawfully 
engage.  Those  rights  are  best  secured,  in  our  government,  by  the 
observance,  upon  the  part  of  all,  of  such  regulations  as  are  es- 
tablished by  competent  authority  to  promote  the  common  good. 
No  one  may  rightfully  do  that  which  the  law-making  power,  upon 
reasonable  grounds,  declares  to  be  prejudicial  to  the  general  wel- 
fare."   Mugler  V.  Kansas,  8  Sup.  Ct.  Rep.  297. 

26 


In  the  case  of  Crowley  vs.  Christensen,  137  U.  S.  86,  11  Su- 
preme Court  Reporter  13,  the  U.  S.  Supreme  Court  says: 

"It  is  urged  that  as  the  Hquors  are  used  as  a  beverage  and  the 
injury  following  them,  if  taken  in  excess,  is  voluntarily  inflicted  and 
is  confined  to  the  party  offending,  their  sales  should  be  withcut 
restrictions,  the  contention  being,  that  what  a  man  shall  drink 
equally  with  what  he  shall  eat  is  not  properly  a  matter  for  legisla- 
tion. There  is  in  this  position  an  assumption  of  fact  which  does 
not  exist — that  when  the  liquors  are  taken  in  excess,  the  injuries 
are  confined  to  the  party  offending.  The  injury,  it  is  true,  first 
falls  upon  him  in  his  health,  which  the  habit  undermines;  in  his 
morals,  which  it  weakens,  and  in  self-abasement,  which  it  creates. 
But,  as  it  leads  to  neglect  of  business  and  waste  of  property  and 
general  demoralization,  it  affects  those  who  are  immediately  con- 
nected with  and  dependent  upon  him." 

The  one  man  who  had  the  greatest  degree  of  personal  liberty 
was  Adam,  and  he  lost  his  soon  after  the  Lord  made  Eve.  Since 
then  each  succeeding  generation  has  enjoyed  less  and  less  of  this 
alleged  divine  attribute  of  human  life. 

The  weakness  of  their  whole  argument  consists  in  the  fact 
that  they  are  insisting  upon  the  liberty  to  violate  the  law,  to  over- 
ride the  will  of  the  majority,  and  to  injure  the  public  welfare.  But 
no  man  has  any  divine  right  to  get  drunk.  Even  though  a  man  may 
not  abuse  the  use  of  liquor  himself,  he  has  no  right  to  have  a 
saloon  maintained  where  other  people  may,  and  do,  indulge  to 
excess  and  which  becomes  a  source  of  crime  and  misery  to  society. 
Every  one  of  these  definitions  of  liberty,  expressly  declares  that 
the  citizen  must  submit  to  all  such  restraints  as  are  necessary  and 
expedient  for  the  public  welfare. 

The  gambling  laws  illustrate  this  fundamental  principle.  The 
reasonableness  of  laws  against  gambling  is  never  questioned.  Such 
laws  are  not  regarded  as  restraints  upon  personal  liberty. 

The  evils  of  gambling  consist  (i)  in  the  danger  of  impoverish- 
ment through  reckless  risk;  (2)  the  demoralizing  effect  of  gain 
without  work;  (3)  the  habit  of  relying  upon  chance  instead  of 
labor  as  a  means  of  acquiring  property. 

The  man  who  chafes  under  the  so-called  paternalism  of  liquor 
laws,  does  not  seem  to  remember  that  they  operate  upon  the  same 
elements  in  human  nature  as  the  gambling  laws.  These  gambling 
laws  protect  the  individual  from  temptation  and  loss  from  his  own 
acts — acts,  too,  which  do  not  affect  any  other  person's  liberty  of 
action.  The  conduct  of  the  gambler  affects  him  and  those  who  are 
dependent  upon  him.  The  danger  of  impoverishment  through 
gambling  risks  is  no  greater  nor  more  likely  to  result  disastrously 

27 


than  the  danger  of  impoverishment  through  the  spending  of  your 
money  in  a  saloon.  The  demoralizing  effect  of  making  money  with- 
out work  is  no  worse  than  the  demoralizing  effect  of  loafing  about 
a  saloon.  The  habit  of  relying  upon  chance  instead  of  labor  as  a 
means  of  acquiring  property  is  no  worse  than  the  habit  of  the  sa- 
loon loafer  to  abandon  all  effort  to  acquire  property  and  to  rely 
upon  his  wife  to  pay  the  rent  and  make  a  living  for  him  over  the 
wash  tub. 

The  government  does  have  a  right  to  protect,  against  his  own 
acts,  the  citizen  who  will  not  protect  or  restrain  himself.  If  the 
government  may  exercise  such  restraint  in  regard  to  gambling, 
why  may  it  not  do  so  in  the  case  of  other  bad  habits  and  practices? 
The  control  of  the  liquor  traffic  protects  the  community  from 
crime  and  the  burdens  of  pauperism.  To  do  these  things  is  a  right 
of  self-protection  which  cannot  be  contested.  The  control  of  the 
liquor  traffic  also  protects  many  men  from  their  own  weaknesses, 
resulting  in  drunkenness  and  a  wasteful  expenditure  of  their  own 
time  and  money.  This  right  cannot  be  contested.  And,  finally, 
the  control  of  the  liquor  traffic  gives  the  majority  the  right  to 
impose  upon  the  minority  the  sentiments  of  the  majority  as  to 
what  is  right  and  best  for  the  public  welfare. 

The  Court  recognizes  two  effects  of  liquor  when  taken  in  ex- 
cess, one  personal,  one  social.  Liquor,  when  taken  in  excess,  un- 
dermines health,  weakens  morals  and  creates  self-abasement. 
These  effects  are  confined  to  the  drinker  himself.  But  it  also 
leads  to  neglect  of  business,  waste  of  property  and  general  de- 
moralization. These  effects  reach  those  who  are  immediately  con- 
nected with  and  dependent  upon  the  drinker. 

The  Court  further  recognizes  the  doctrine  necessarily  implied 
in  the  language  above  quoted,  that  a  man  has  no  personal  liberty 
to  disgrace,  debase  and  bring  to  want  those  who  are  dependent 
.  upon  him.  He  has  a  personal  right  to  bring  up  his  children  to  a 
useful  and  virtuous  life,  but  he  has  no  personal  right  to  disgrace 
them  nor  to  so  spend  his  substance  as  to  make  them  a  charge  upon 
the  public. 

The  advocate  of  personal  liberty  bases  his  argument  on  the 
proposition  that  his  drinking  is  purely  a  personal  matter,  and  does 
not  concern  the  public,  but  the  anti-saloon  advocate  bases  his 
argument  on  the  proposition  that  total  abstinence  is  justified  by 
the  effect  of  liquor  upon  those  who  drink  it,  and  the  Courts  hold 
that  regulation  and  prohibition  of  the  liquor  traffic  are  justified  by 
the  effect  of  liquor  upon  those  who  do  not  drink  it.  Those  who 
do  not  drink  are  a  part  of  society  and  have  rights  which  cannot  be 
lost  nor  taken  away. 

28 


The  advocate  of  personal  liberty  is  out  of  harmony  with  our 
political  institutions  and  sets  at  naught  the  sacred  traditions  of  the 
majority  rule.  Anti-j.aloon  laws  are  not  thrust  upon  the  citizen 
by  the  arbitrary  will  C'f  some  despotic  tyrant  or  absolute  monarch, 
but  by  the  will  of  the  'iiajority  evidenced  by  the  act  of  an  elective 
General  Assembly  or  by  the  direct  vote  of  the  people.  When 
people  acting  thus  in  a  constitutional  manner,  adopt  measures  to 
protect  public  morals,  it  is  not  becoming  in  a  dissatisfied  minority 
to  complain  that  their  personal  liberty  is  invaded.  They  ignore 
the  relation  which  a  citizen  sustains  to  society  and  to  those  who  are 
dependent  upon  him. 

A  minority  residing  in  any  political  unit,  and  enjoying  the 
general  protection  afforded  by  an  organized  local  government, 
should  not  be  permitted  to  defy  the  will  of  its  constituted  authorities, 
acting  in  good  faith  for  all,  under  the  legislative  sanction  of  the 
state.  If  such  be  the  privilege  of  a  minority,  then  a  like  privilege 
would  belong  to  each  individual  of  the  community  and  the  spec- 
tacle would  be  presented  of  the  welfare  and  safety  of  an  entire 
population  being  subordinated  to  the  notion  of  a  single  individual. 
It  is  not  an  element  of  liberty  secured  by  the  constitution  of  the 
United  States  that  one  person,  or  a  minority  of  persons,  residing 
in  any  community,  and  enjoying  the  benefits  of  its  local  govern- 
ment, should  have  the  power  thus  to  dominate  the  majority  when 
supported  in  their  action  by  the  authority  of  the  state. 

President  Lincoln,  in  his  first  inaugural  address,  in  well  chosen 
words,  stated  the  necessity  for  majority  rule  as  follows,  viz :  "A 
majority  held  in  restraint  by  constitutional  checks  and  limitations, 
and  always  changing  easily  with  deliberate  changes  of  popular 
opinions  and  sentiments,  is  the  only  true  sovereign  of  a  free 
people.  Whoever  rejects  it,  does,  of  necessity,  fly  to  anarchy  or  to 
despotism.  Unanimity  is  impossible;  the  rule  of  a  minority,  as  a 
permanent  arrangement,  is  wholly  inadmissible;  so  that,  rejecting 
the  majoritv  principle,  anarchy  or  despotism  in  some  form  is  all 
that  is  left.' 

In  ordci  ^o  make  their  argument  hold  good,  these  advocates  of 
piersonal  liberty  must  make  it  appear  that  the  physical  and  moral 
welfare  of  the  c/;izen  is  not  a  sufficient  warrant  for  interference 
by  the  Goverr.inent ;  that  injury  to  the  social  welfare  is  not  ade- 
quate ground  on  which  to  interfere  with  his  so-called  rights,  and 
that  every  man  has  a  right  to  decide  for  himself  how  far  he  will 
indulge  in  the  vice  of  drink. 

Thesj  advocates  of  personal  liberty  in  maintaining  such  propo- 
sitions deliberately  shut  their  eyes  against  the  laws  and  decisions 
of  every  State  in  the  Union.    Every  state  has  recognized  the  right 

29 


to  restrain  or  prohibit  the  liquor  traffic.  This  recognizes  the  right 
of  the  government  to  protect  the  physical  and  moral  welfare  of  the 
citizen  and  to  promote  the  social  welfare  of  the  people  as  a  whole 
and  to  decide  that  no  man  may  indulge  in  the  vice  of  drink  to  such 
an  extent  that  he  becomes  intoxicated. 

Another  false  argument  on  this  subject  is  that  if  the  right 
be  recognized  to  regulate  or  prohibit  what  a  man  shall  drink,  there 
is  nothing  to  prevent  the  government  from  regulating  what  a  man 
shall  eat.  This  argument,  however,  cannot  be  seriously  proposed. 
It  is  advanced,  not  for  the  purpose  of  convincing  anybody,  but  in 
the  hope  that  the  indifferent  may  be  confused.  There  is  nothing 
which  we  eat  that  destroys  intelligence  and  morality  and  is  a 
source  of  crime  and  misery  to  society,  and  is  an  organized  power 
for  corruption  in  politics,  such  as  liquor.  And  if,  in  the  triumphs 
of  science  in  future  years,  someone  should  invent  a  whiskey  dough- 
nut or  a  beer  pretzel  which  contained  in  concentration,'  the  in- 
toxicating force  of  whiskey  or  beer,  and  the  eating  of  such 
doughnuts  and  pretzels  should  produce  the  same  amount  of 
crime  and  misery  and  injury  to  society  that  whiskey  and  beer 
now  produce,  then  the  Government  would  have  the  same  right  to 
regulate,  restrain  or  prohibit  the  traffic  in  these  whiskey  dough- 
nuto  and  beer  pretzels,  as  it  now  exercises  in  the  regulation,  re- 
straint and  prohibition  of  whiskey  and  beer.  But  so  long  as  what 
we  eat  does  not  become  a  source  of  crime  and  misery  to  society, 
there  is  no  reason  why  the  Government  should  interfere  with  our 
eating,  and  so  long  as  the  preservation  of  society  does  not  demand 
it,  no  law  will  be  enacted  regulating  what  we  shall  eat. 

Oftentimes  the  man  who  prates  loudest  about  his  personal 
liberty,  is  the  man  who  has  a  wife  and  half  a  dozen  children.  The 
wife  and  children  know  that  if  he  is  permitted  to  gratify  his  appe- 
tite, it  means  hunger  and  misery  to  them.  Shall  the  Government 
regard  only  the  appetite  of  the  one  and  disregard  the  needs  of  the 
other  six  or  seven,  and  perhaps  make  them  a  public  charge,  that 
the  one  may  enjoy  his  personal  liberty?  So  when  the  sot  com- 
plains that  you  are  about  to  interfere  with  his  personal  liberty  to 
be  a  sot,  I  would  have  you  remember  also  the  personal  liberty  of 
his  wife,  and  children,  and  that  getting  drunk  is  not  an  inherent 
attribute  of  liberty. 

It  follows,  therefore,  that  personal  liberty  is  no  more  sacred 
than  private  property.  The  personal  right  to  one's  liberty  is  no 
greater  than  the  personal  right  to  one's  property.  Personal  liberty 
when  used  for  gambling  purposes,  for  example,  is  no  more  sacred 
than  personal  property,  when  used  for  gambling,  purposes.  No 
man  has,  as  a  matter  of  law,  any  personal  right  to  be  immoral,  or 


to  conduct  an  immoral  business,  when  his  immoral  conduct  or 
business  injures  others.  When  a  man  begins  to  do  things  which 
injure  others,  his  personal  liberty  ends.  Personal  liberty  of  the  in- 
dividual cannot  prevail  against  the  public  welfare. 

II.    Deprives  Laborers  of  Their  Bread. 

Another  objection  much  like  the  personal  liberty  proposition, 
is  that  if  we  vote  the  saloons  out  and  prohibit  the  manufacture  of 
liquor,  we  deprive  many  people,  bartenders  and  brewery  em- 
ployees, of  their  means  of  making  a  living.  They  argue  that  it  is 
inhuman  to  deprive  these  employees  of  their  bread  and  butter. 

This  charge  against  us  is  a  serious  one,  if  true,  and  without 
justification.  But  it  is  not  true  in  fact,  because  we  do  not,  by 
voting  a  county  or  state  "dry,"  deprive  any  man  of  his  bread  and 
butter.  The  most  that  can  be  charged  against  us  is,  that  a  few 
men  may  have  to  change  their  methods  of  getting  their  bread  and 
butter,  by  changing  their  employment.  This  change  is  justified  by 
the  good  results  achieved. 

We  have  a  right  to  object  even  to  the  way  people  get  their 
bread  and  butter,  if  the  business  engaged  in,  or  the  methods  used 
by  them  to  get  their  own  bread  and  butter,  take  bread  and  butter 
out  of  the  mouths  of  others. 

That  is  exactly  the  charge  made  against  the  saloon  business. 
The  Supreme  Court  recognizes  the  fact  that  liquor  drinking  in- 
jures health,  weakens  morals,  leads  to  neglect  of  business,  waste 
of  property  and  general  demoralization,  and  affects  those  who  are 
immediately  connected  with  and  dependent  upon  the  drinker.  The 
pickpocket,  the  burglar  or  the  horse  thief,  may  argue  that  they 
have  chosen  these  methods  of  getting  their  bread  and  butter,  and 
have  no  other  means  of  getting  a  living,  but  we  make  short  work 
of  their  arguments.  No  man  ever  had  any  right  to  build  up  a 
fortune  for  himself  on  the  misfortunes  of  others.  A  man's  right 
to  make  money  is  subject  to  the  right  of  society  to  make  men.  It 
is  high  time  that  we  announced  these  doctrines  and  taught  them  to 
the  people. 

The  right,  inherent  in  the  people,  to  protect  public  morals, 
gives  us  the  right  to  make  a  man  change  his  employment  when  that 
employment  becomes  detrimental  to  public  morals.  A  citizen  has 
no  more  right  to  do  an  injury  to  society  by  his  means  of  personal 
employment,  than  he  has  by  the  use  of  his  private  property,  and 
we  have  already  seen  that  a  man  may  not  so  use  his  property  as 
to  injure  another.  The  words  of  the  United  States  Supreme 
Court  exactly  cover  the  case  in  point;     "If  the  public  safety  or 

31 


the  public  morals  require  the  discontinuance  of  any  manufacture 
or  traffic,  the  hand  of  the  legislature  cannot  be  stayed  from  pro- 
viding for  its  discontinuance  by  any  incidental  inconvenience  v^^hich 
individuals  or  corporations  may  suffer." 

In  the  case  of  State  v.  Gray,  6i  Conn.  46,  the  Supreme  Court 
of  that  state  said:  "Nor  does  the  constitution  recognize  that  a 
man  shall  have  t*he  inviolate  right  to  a  means  of  livelihood  the 
exercise  of  which  will  deprive  others  of  their  means  of  livelihood, 
and  bring  shame,  disgrace  and  ruin  upon  the  community.  Such  a 
contention  is  not  to  be  tolerated." 

These  men  can  find  other  employment,  equally  remunerative 
and  far  more  honorable  to  themselves  and  more  useful  to  the 
community.  They  can  find  some  business  which  will  not  destroy 
the  moral  character  of  their  patrons.  We  must  remember  that 
there  is  bread  and  butter  on  both  sides  of  the  proposition.  On  one 
side  is  the  saloonkeeper  and  perhaps  one  or  two  bartenders  and 
their  families.  On  the  other  hand  are  the  hundreds  of  drinkers 
and  their  families,  and  two  or  three  are  not  entitled  to  your  sympa- 
thy as  against  the  welfare  of  the  hundreds  of  others,  most  of  whom 
are  helpless  sufferers,  as  long  as  we  permit  the  saloons  to  run. 

If  we  continue  to  tolerate  the  saloon,  many  more  people  will 
be  deprived  of  bread  and  butter  than  will  be  supplied  with  bread 
and  butter.  Therefore,  on  the  basis  of  the  greatest  good  to  the 
greatest  number,  we  are  justified  in  closing  up  the  saloon.  You 
have  a  right  to  protect  public  morals,  no  matter  what  happens  to 
the  people  who  purposely  or  negligently  block  the  way. 

From  the  despairing  wail  of  the  "wets,"  you  would  expect  to 
see  armies  of  former  saloon  and  liquor  employes  tramping  the 
streets  of  every  "dry"  city  and  thronging  the  highways  of  every 
"dry"  state,  begging  for  work  or  for  bread.  To  be  compelled  to 
beg  for  bread  is  pitiable,  but  to  be  compelled  to  beg  for  work  is 
infinitely  horrible.  No  such  direful  calamity  ever  befell  any 
people,  as  the  direct  or  indirect  result  of  voting  out  the  saloons. 
Experience  is  usually  wiser  than  mere  prediction.  The  certainties 
of  experience  are  a  safer  guide  than  unfulfilled  prophecies  of 
disaster.  Any  inconvenience  to  these  men  is  only  an  incident,  and 
not  the  main  purpose  of  the  law,  and  such  inconvenience  is  only 
temporary,  and  no  county  or  state  in  the  whole  Union  can  be 
cited  in  proof  of  their  claim  that  bread  and  butter  are  not  as 
plentiful  in  "dry"  territory  as  in  "wet." 

Progress  in  things  material  as  distinguished  from  things 
moral,  has  often  deprived  men  of  their  bread  and  butter  as  ef- 
fectually as  prohibition  deprives  these  saloon  employes  of  their 
bread   and  butter.     Labor   saving   machinery   has   put   more   men 

32 


out  of  a  job — out  of  harmless  employment — than  prohibition  ever 
did.     Take  one  illustration: 

When  I  was  a  boy  a  railroad  was  constructed  near  my  home. 
They  cut  through  a  hill  and  filled  up  an  adjoining  valley.  An 
army  of  Irishmen  with  picks  and  shovels  and  mules  and  carts  dug 
the  dirt  out  of  the  cut  and  dumped  it  on  the  fill.  A  few  years 
ago  the  railroad  company  wanted  to  straighten  the  road  through 
the  hill  and  raise  the  fill.  They  made  a  new  cut.  Instead  of  the 
old  army  of  Irishmen,  the  company  brought  a  modern  steam  shovel 
or  two,  a  locomotive  and  a  train  of  flat  cars.  With  a  few  move- 
ments of  the  shovel  they  loaded  the  cars  and  then  hauled  the 
dirt  to  the  fill.  There  they  attached  the  locomotive  to  a  giant  plow 
or  scraper  and  in  a  few  moments  more  the  whole  train  was  un- 
loaded, and  that  old  army  of  Irishmen  were  deprived  of  their 
Taread  and  butter  as  effectually  as  any  bartender  or  saloon  employee 
is  deprived  of  his. 

If  men  must  yield  their  personal  liberty  to  material  progress 
to  such  an  extent  that  they  must  seek  some  other  way  of  getting 
their  bread  and  butter,  then  for  a  stronger  reason,  moral  progress 
may  make  an  equal  demand  for  the  benefit  of  the  public  welfare. 
In  deciding  how  a  citizen  may  earn  his  bread  and  butter,  the 
greatest  good  to  the  greatest  number  is  still  the  controlling  principle. 

III.    Rights  of  Property. 

Another  objection  is  that  if  you  vote  the  saloons  out,  the 
saloon  fixtures  will  become  useless  and  unsaleable,  and  the  money 
invested  in  the  manufacture  of  liquors  will  become  unprofitable, 
and  thus  the  retailers  and  manufacturers  will  be  deprived  of  their 
property  without  compensation  or  due  process  of  law. 

A  sufficient  answer  to  this  objection  is  that  the  United  States 
Supreme  Court  has  already  decided  the  point  in  favor  of  the  "drys." 
It  is  fundamental  that  no  person  shall  be  deprived  of  his  property 
without  due  process  of  law.  The  liquor  advocates  always  lay 
great  emphasis  upon  this  proposition.  But  it  is  equally  funda- 
mental that  all  property  is  held  under  the  implied  obligation  that 
the  owner's  use  of  it  shall  not  be  injurious  to  the  community.  This 
proposition,  the  liquor  advocates  always  overlook. 

In  the  case  of  Menken  vs.  City  of  Atlanta,  y^  Ga.  677  and  678, 
the  Supreme  Court  of  that  State  passed  upon  a  local  option  law 
enacted  by  the  Georgia  Legislature.  A  party  had  complained  that 
\\s  brewery  was  rendered  unproductive  by  the  enforcement  of  the 
local  option  law  and  claimed  that  his  property  had  been  damaged 
vfithin  the  meaning  of  the  State  Constitution.  In  commenting 
pon  this  case,  the  Supreme  Court  said: 

33 


"There  has  been  no  physical  interference  with  the  brewery,  no 
trespass  or  tort  upon  it,  no  change  in  its  physical  surroundings, 
or  in  the  means  of  ingress  and  egress.  It  is  as  sound  and  com- 
plete in  every  respect  and  as  fit  for  enjoyment,  use  and  disposition, 
with  this  law  in  force,  as  it  would  be  without  it.  No  doubt  its 
value  is  greatly  impaired,  and  impairment  of  value  is  often  the 
essence  of  legal  damages.  No  doubt,  too,  that  the  impaired  value 
of  this  property  is  a  remote  consequence  of  the  law,  and  that 
were  the  law  repealed,  the  value  would  be  re-instated  as  it  was 
before.  But  while  to  lessen  the  value  of  property  by  changing 
its  physical  condition,  or  by  subjecting  it  directly  to  new  physical 
conditions  of  a  hurtful  character  is  to  damage  it,  to  reduce  its 
value  indirectly  and  incidentally  by  the  casual  effects  of  a  law 
passed  for  a  wholly  different  subject,  is  not  to  damaage  it  within 
any  legal  or  constitutional  sense  of  the  term.  Rarely,  perhaps, 
does  any  new  law  which  acts  with  vigor  upon  commerce,  local  or 
general,  fail  to  impair  the  value  of  more  or  less  property.  Surely 
the  damage  clause  in  our  new  constitution  was  not  intended  to 
make  the  state  or  the  legislature  an  insurer  against  all  shrinkage 
of  values  that  might  result  from  the  passage  of  laws  intended  for 
the  public  good.  Can  it  be  seriously  thought  that  the  State  must 
literally  pay  its  way  to  the  establishment  of  a  sound  and  whole- 
some system  of  interior  police  and  public  order? 

"The  local  option  law  rests  in  no  degree  upon  the  power  of 
eminent  domain.  It  does  not  contemplate  either  the  taking  or  the 
damaging  of  anything.  It  is  an  exercise  of  the  police  power  of 
this  commonwealth,  pure  and  simple.  The  incidental  effects  upon 
the  value  of  this  brewery  and  its  fixtures  result  not  from  any  in- 
terference with  the  property,  but  solely  from  the  inability  of  the 
owners  to  adjust  their  old  business  to  the  new  law.  These  effects, 
if  they  can  be  called  damage  at  all,  are  damnum  absque  injuria. 
The  law  does  not  take  or  damage  the  property  of  these  owners 
for  the  public  use,  but  only  prevents  them,  to  a  certain  limited  ex- 
tent, from  taking  or  damaging  the  public  for  their  use.  This  is 
their  real  grievance,  and  for  that  they  have  no  remedy.  Where 
business  and  law  conflict,  it  is  the  business  that  must  give  way, 
not  the  law." 

In  the  State  of  Ohio,  the  Constitution  contains  a  provision 
which  forbids  the  licensing  of  the  traffic,  but  authorizes  the  legisla- 
ture to  provide  by  law  against  the  evils  resulting  from  the  traffic. 

In  the  case  of  Adler  vs.  Whitbeck,  44  O.  S.  574,  the  Supreme 
Court  of  Ohio  declared  that  the  provision  of  the  Constitution 
above  recited  "has  stood  since  its  adoption  as  a  perpetual  admoni- 
tion to  all  persons  engaging  in  this  traffic,  that  in  doing  so,  they 

34 


place  their  property  invested  in  the  business,  subject  to  the  power 
of  the  General  Assembly  to  provide  against  the  evils  resulting 
from  the  traffic." 

In  the  case  of  State  vs.  Calloway,  ii  Idaho  719,  114  American 
State  Reports,  295,  the  Supreme  Court  of  Idaho,  says: 

"Prohibition  of  the  use  of  property  for  purposes  that  are 
declared  by  valid  legislation  to  be  injurious  to  the  health,  morals, 
or  safety  of  the  community,  cannot,  in  any  just  sense,  be  deemed 
a  taking  or  an  appropriation  of  the  property  for  public  benefit  or 
without  due  process  of  law.  The  above  principles  are  amply  sup- 
ported by  reason  and  by  a  long  line  of  decisions.  The  business 
of  manufacturing  and  selling  intoxicating  liquors  is  one  that  his- 
tory and  experience  show  requires  legislative  restraint  and  super- 
vision, and  even  if  the  manufacturers  have  erected  large  plants 
for  the  manufacture  of  such  liquors  in  any  State,  the  Legislature 
of  such  State  may  enact  a  prohibition  law  and  make  it  unlawful  to 
manufacture  such  liquor." 

This  question  was  raised  in  the  Kansas  Prohibition  cases  and 
every  phase  of  it  was  pressed  hard  upon  the  Court.  United  States 
Senator  Vest  of  Missouri,  who  represented  some  of  the  brewers, 
argued  that  the  Kansas  prohibition  law  deprived  the  brewers  di- 
rectly and  absolutely  of  their  property,  without  due  process  of 
law;  that  by  the  enactment  of  this  statute  the  property  was  re- 
duced in  value  by  the  direct  prohibition  of  the  real  and  primary 
use;  that  to  destroy  the  right  to  manufacture  beer  for  a  beverage 
is  to  deprive  the  owner  of  his  property,  although  he  is  left  the 
right  to  manufacture  it  for  other  purposes,  since  that  is  the 
ordinary,  usual,  and  principal  use  of  beer,  and  that  this  is  an 
attempt  not  merely  to  legislate  for  the  future  but  an  attempt  to 
destroy  vested  rights  by  legislative  enactment  without  compensa- 
tion, and  without  due  process  of  law. 

Joseph  H.  Choate,  counsel  for  certain  other  brewers  involved 
in  the  same  case,  argued  that  the  Kansas  law  deprived  his  clients 
of  their  liberty  and  property,  and  abridged  their  privileges  and  im- 
munities as  citizens  of  the  United  States;  that  at  the  time  of  the 
passage  of  the  act  complained  of,  it  was  one  of  the  fundamental 
rights  of  his  clients  as  citizens,  to  manufacture  beer,  and  to  use 
their  brewery  for  that  purpose;  that  the  State  could  only  restrain 
this  right  by  virtue  of  the  police  power,  which  could  only  be  ex- 
ercised to  the  extent  reasonable  and  necessary  for  the  preservation 
and  promotion  of  the  morals  and  health  of  the  people ;  that  this 
law  goes  further  than  that  and  destroys  their  property  without 
compensation. 

The  Court  met  these  arguments  in  a  full  discussion  of  all  the 

35 


principles  involved.  The  argument  of  the  Court  ought  not  to  be 
abridged  or  condensed.    The  language  of  the  Court  is  as  follows: 

"Upon  this  ground,  if  we  do  not  misapprehend  the  position  of 
defendants,  it  is  contended  that,  as  the  primary  and  principal  use 
of  beer  is  as  a  beverage;  as  their  respective  breweries  were 
erected  when  it  was  lawful  to  engage  in  the  manufacture  of  beer 
for  every  purpose;  as  such  establishments  will  become  of  no 
value  as  property,  or,  at  least,  will  be  materially  diminished  in 
value,  if  not  employed  in  the  manufacture  of  beer  for  every 
purpose — the  prohibition  upon  their  being  so  employed  is,  in  effect, 
a  taking  of  property  for  public  use  without  compensation,  and  de- 
priving the  citizen  of  his  property  without  due  process  of  law. 
In  other  words,  although  the  State,  in  the  exercise  of  her  police 
powers,  may  lawfully  prohibit  the  manufacture  and  sale,  within 
her  limits,  of  intoxicating  liquors  to  be  used  as  a  beverage,  legisla- 
tion having  that  object  in  view  cannot  be  enforced  against  those 
who,  at  the  time,  happen  to  own  property,  the  chief  value  of 
which  consists  in  its  fitness  for  such  manufacturing  purposes, 
unless  compensation  is  first  made  for  the  diminution  in  the  value 
of  their  property,  resulting  from  such  prohibitory  enactments. 

"This  interpretation  of  the  fourteenth  amendment  is  inadmis- 
sible. It  cannot  be  supposed  that  the  States  intended,  by  adopting 
that  amendment,  to  impose  restraints  upon  the  exercise  of  their 
powers  for  the  protection  of  the  safety,  health,  or  morals  of  the 
community.  In  respect  to  contracts,  the  obligations  of  which  are 
protected  against  hostile  State  legislation,  this  Court,  in  Union  Co. 
V.  Landing  Co.,  iii  U.  S.,  751,  4  Sup.  Ct.  Rep.,  652,  said  that  the 
State  could  not,  by  any  contract,  limit  the  exercise  of  her  power 
to  the  prejudice  of  the  public  health  and  the  public  morals.  So, 
in  Stone  v.  Mississippi,  loi  U.  S.,  816,  where  the  constitution  was 
invoked  against  the  repeal  by  the  state  of  a  charter,  granted  to  a 
private  corporation,  to  conduct  a  lottery,  and  for  which  that  cor- 
poration paid  to  the  State  a  valuable  consideration  in  money,  the 
Court  said:  *No  legislature  can  bargain  away  the  public  health 
or  the  public  morals.  The  people  themselves  cannot  do  it,  much 
less  their  servants.  *  *  *  Government  is  organized  with  a  view 
to  their  preservation  and  cannot  divest  itself  of  the  power  to  pro- 
vide for  them.'  Again,  in  Gas  Light  Co.  v.  Light  Co.,  115  U.  S.,  650, 
672,  6  Sup.  Ct.  Rp.,  252:  The  constitutional  prohibition  upon 
State  laws  impairing  the  obligation  of  contracts  does  not  restrict 
the  power  of  the  State  to  protect  the  public  health,  the  public 
morals,  or  the  public  safety,  as  the  one  or  the  other  may  be  in- 
volved in  the  execution  of  such  contracts.  Rights  and  privileges 
arising  from  contracts  with  a  State  are  subject  to  regulations  for 

36 


the  protection  of  the  public  health,  the  public  morals,  and  the 
public  safety,  in  the  same  sense,  and  to  the  same  extent,  as  are 
all  contracts  and  all  property,  whether  owned  by  natural  persons 
or  corporations/ 

"  *The  principle  that  no  person  shall  be  deprived  of  life,  liberty, 
or  property  without  due  process  of  law  was  embodied,  in  sub- 
stance, in  the  constitutions  of  nearly  all,  if  not  all,  of  the  States 
at  the  time  of  the  adoption  of  the  fourteenth  amendment;  and  it 
has  never  been  regarded  as  incompatible  with  the  principle,  equally 
vital,  because  essential  to  the  peace  and  safety  of  society,  that  all 
property  in  this  country  is  held  under  the  implied  obligation  that 
the  owner*s  use  of  it  shall  not  be  injurious  to  the  community. 
Beer  Co.  v.  Mass.,  97  U.  S.  32.' " 

And  the  court,  speaking  directly  of  the  breweries  which  were, 
or  might  be  rendered  unprofitable  by  the  enforcement  of  the  pro- 
hibition law,  continued  thus:  "As  already  stated,  the  present  case 
must  be  governed  by  principles  that  do  not  involve  the  power  of 
eminent  domain,  in  the  exercise  of  which  property  may  not  be 
taken  for  public  use  without  compensation.  A  prohibition  simply 
upon  the  use  of  property  for  purposes  that  are  declared  by  valid 
legislation,  to  be  injurious  to  the  health,  morals,  or  safety  of  the 
community,  cannot,  in  any  just  sense,  be  deemed  a  taking  or  an 
appropriation  of  property  for  the  public  benefit.  Such  legislation 
does  not  disturb  the  owner  in  the  control  or  use  of  his  property 
for  lawful  purposes,  nor  restrict  his  right  to  dispose  of  it,  but  is 
only  a  declaration  by  the  State  that  its  use  by  any  one,  for  certain 
forbidden  purposes,  is  prejudicial  to  the  public  interests.  Nor  can 
legislation  of  that  character  come  within  the  fourteenth  amend- 
ment, in  any  case,  unless  it  is  apparent  that  its  real  object  is  not 
to  protect  the  community,  or  to  promote  the  general  well-being, 
but,  under  the  guise  of  police  regulation,  to  deprive  the  owner  of 
his  liberty  and  property,  without  due  process  of  the  law.  The  power 
which  the  States  have  of  prohibiting  such  use  by  individuals  of 
their  property,  as  will  be  prejudicial  to  the  health,  the  morals,  or 
the  safety  of  the  public,  is  not,  and,  consistently  with  the  existence 
and  safety  of  organized  society,  cannot  be,  burdened  with  the 
condition  that  the  State  must  compensate  such  individual  owners 
for  pecuniary  losses  they  may  sustain,  by  reason  of  their  not  being 
permitted,  by  a  noxious  use  of  their  property,  to  inflict  injury  upon 
the  community.  The  exercise  of  the  police  power  by  the  destruc- 
tion of  the  property  which  is  itself  a  public  nuisance,  or  the  prohi- 
bition of  its  use,  in  a  particular  way,  whereby  its  value  becomes 
depreciated,  is  very  different  from  taking  property  for  public  use, 
or  from  depriving  a  person  of  his  property  without  due  process 

37 


of  law.  In  the  one  case,  a  nuisance  only  is  abated;  in  the  other, 
unoffending  property  is  taken  away  from  an  innocent  owner.  It  is 
true,  when  the  defendants  in  these  cases  purchased  or  erected  their 
breweries,  the  laws  of  the  State  did  not  forbid  the  manufacture  of 
intoxicating  liquors.  But  the  State  did  not  thereby  give  any  as- 
surance, or  come  under  obligation,  that  its  legislation  upon  the 
subject  would  remain  unchanged.  Indeed,  as  was  said  in  Stone  v. 
Mississippi,  loi  U.  S.,  814,  the  supervision  of  the  public  health  and 
the  public  morals  is  a  governmental  power,  ^continuing  in  its 
nature*  and  *to  be  dealt  with  as  the  special  exigencies  of  the  mo- 
ment may  require;'  and  that,  *for  this  purpose  the  largest  legisla- 
tive discretion  is  allowed  and  the  discretion  cannot  be  parted  with 
any  more  than  the  power  itself.*  So  in  Beer  Co.  v.  Massachusetts, 
97  U.  S.,  32:  *If  the  public  safety  or  the  public  morals  require  the 
discontinuance  of  any  manufacture  or  traffic,  the  hand  of  the  legis- 
lature cannot  be  stayed  from  providing  for  its  discontinuance  by 
any  incidental  inconvenience  which  individuals  or  corporations  may 
suffer.' " 

No  State  is  under  any  contract  with  its  citizens,  either  express 
or  implied,  to  refrain  from  passing  laws  for  the  purpose  of  secur- 
ing the  public  health  or  of  preserving  public  morals,  no  matter 
haw  large  a  class  the  passage  of  such  laws  may  embarrass  or  bank- 
rupt. And  no  State  will  refrain  from  the  passage  of  such  protec- 
tive laws  unless  it  is  in  the  hands  of  unprincipled  men.  "Rights 
and  privileges  arising  from  contracts  with  the  State  are  subject 
to  regulations  for  the  protection  of  the  public  health,  the  public 
morals  and  the  public  safety."  Gas  Co.  v.  Light  Co.,  115  U.  S.  650, 
6.  Sup.  Ct.  Rep.,  262. 

The  exercise  of  legislative  power  by  the  States  in  securing  the 
public  safety,  health  and  morals,  does  not  conflict  with  any  provision 
of  the  national  constitution.  "The  governmental  power  of  self- 
protection  cannot  be  contracted  away,  nor  can  the  exercise  of  rights 
granted,  nor  the  use  of  property,  be  withdrawn  from  the  implied 
liability  to  governmental  regulation  in  particulars  essential  to  the 
preservation  of  the  community  from  injury." 

New  York  &  N.  E.  R.  Co.  v.  Town  of  Bristol,  14  Sup.  Ct.  Rep. 
440. 

No  matter  how  long,  nor  how  profitably,  these  liquor  manu- 
facturers and  dealers  may  have  used  their  property  for  such 
purposes,  they  cannot,  by  such  use,  even  under  the  permission  of 
the  state,  acquire  any  rights,  which  subsequent  legislatures  cannot 
annul  if  the  public  health  or  morals  will  be  promoted  thereby. 
"One  legislature  cannot  so  limit  the  discretion  of  its  successors  that 

38 


they  may  not  enact  such  laws  as  are  necessary  to  protect  the  public 
health  or  the  public  morals." 

N.  O.  Gas  Light  Co.  v.  La.  Light  Co.,  6  Sup.  Ct.  Rep.  262. 

"The  truth  is,  that  the  exercise  of  the  police  power  often 
works  pecuniary  injury,  but  the  settled  rule  of  this  court  is  that  the 
mere  fact  of  pecuniary  injury  does  not  warrant  the  overthrow  of 
legislation  of  a  police  character."  *  *  *  *  "Each  individual 
holds  his  property  subject  to  the  ordinary  and  reasonable  exercise 
of  the  police  power,  and  the  fact  that  its  exercise  may  in  a  particular 
case  work  pecuniary  injury  was  adjudged  insufficient  to  stay  the 
legislative  action." 

L'Hote  v.  New  Orleans,  20  Sup.  Ct.  Rep.  792. 

In  the  case  of  Northwestern  Fertilizer  Co.  v.  Hyde  Park,  97 
U.  S.  659,  a  fertilizer  plant  had  been  constructed  under  the 
authority  of  the  State  legislature  outside  the  then  limits  of  the  city 
of  Chicago,  and  where  there  was  no  population.  In  the  course  of 
years  the  village  of  Hyde  Park  grew  up  around  the  works  of  the 
company  and  passed  an  ordinance  to  suppress  these  works.  The 
United  States  Supreme  Court  held  the  ordinance  valid.  "Although 
there  was  a  charter  right  to  maintain  these  works,  and  although 
when  established  they  were  located  in  a  territory  in  which  there 
was  no  population,  yet  when  the  population  had  gathered  around 
them,  the  police  power  of  the  state  was  held  sufficient  to  stop  their 
existence,  and  that  without  compensation  to  the  owner.  The  pe- 
cuniary injury  which  directly  resulted  to  the  company  from  the 
stoppage  of  its  works  was  held  no  bar  to  the  police  power  of  the 
State." 

L*Hote  v.  New  Orleans,  20  Sup.  Ct.  Rep.  792. 

Therefore,  in  the  light  of  these  authorities,  let  not  your  heart 
be  troubled,  neither  let  it  be  afraid,  when  the  liquor  dealer  com- 
plains that  his  property  is  being  taken  from  him  without  compensa- 
tion or  due  process  of  law.  He  is  not  deprived  of  his  property  at 
all,  but  is  only  prevented  from  using  it  to  the  public  injury.  He 
IS  not  entitled  to  any  sympathy  on  that  ground.  No  man  has  any 
right  to  ask  your  sympathy  against  any  law,  which  merely  pre- 
vents him  from  injuring  public  morals.  If  men  will  persist  in 
investing  their  money  in  a  business  which,  because  of  its  injury 
to  public  morals,  may  be  prohibited  by  law,  they  have  nobody  to 
blame  but  themselves  and  they  have  no  right  to  your  sympathy 
against  statutes  so  necessary  to  the  public  welfare.  It  is  our 
moral,  as  well  as  our  patriotic  duty  to  give  our  active,  positive 
support  to  every  law  which  promotes  the  public  welfare  by  protect- 
ing public  morals. 

39 


IV.     Must  Have  the  Revenue. 

Still  another  objection  by  the  liquor  advocate  is  that  we  cannot 
get  along  without  the  saloon  revenue.  The  Philadelphia  Liquor 
Dealers*  Association  not  long  ago  expressed  the  objection  in  the 
following  words:  "If  it  were  not  for  the  revenues  that  the  sa- 
loons of  this  country  are  now  paying  the  Government,  heaven 
only  knows  what  would  become  of  the  tax  payer.  The  millions 
of  dollars  we  pour  annually  into  the  National  and  State  treasuries- 
help  to  lower  the  tax  rates  and  virtually  support  the  communities. 
To  eliminate  the  saloon  would  be  to  undermine  the  foundations  of 
the  country's  revenues." 

It  is  refreshing  to  see  the  breezy  replies  to  this  declaration^ 
made  by  two  great  secular  papers. 

The  Philadelphia  North  American,  thus  makes  reply,  viz: 

"This  statement  is  at  once  an  insolence  and  an  untruth.  The 
sanctuaries  of  this  nation  are  not  built  upon  pillars  made  of  kegs 
and  barrels.  Something  besides  bottles  stands  between  America 
and  bankruptcy.  *  *  ♦  *  But  they  forfeit  the  privilege  of 
tolerant  treatment  when  they  make  the  statement  quoted.  They 
had  no  right  to  make  it.  Because  it  is  untrue,  because  they  know 
it  is  untrue,  because  it  is  an  offensive  untruth  to  every  enlightened 
citizen;  because  it  is  a  palpable  and  vicious  attempt  to  deceive 
those  of  the  people  who  are  unacquainted  with  the  real  economic^ 
political  and  industrial  conditions  of  the  country." 

The  Indianapolis  News  makes  its  rejoinder  as  follows,  viz : 

''One  thing  is  certain;  this  saloon  question  will  in  no  wise  be 
settled  on  the  money  basis.  It  is  beyond  question  that  any  sug- 
gestion of  revenue  will  count  only  as  an  irritant;  for  the  change 
that  seems  certain  to  be  wrought  in  the  liquor  business  by  the  wave 
of  reform  that  is  sweeping  the  country  will  be  for  moral  reasons. 
The  saloons  will  be  restricted  and  in  many  cases  abolished  for 
moral,  not  material  reasons.  They  may  cease  to  exist  outside  of 
large  cities,  and  the  whole  traffic  may  come  to  be  done  under  con- 
ditions that  will  align  it  with  the  traffic  in  poisons  and  high  ex- 
plosives" 

In  the  trial  of  the  "License  Cases"  in  1847,  the  saloon  advocates 
put  the  same  argument  up  to  the  United  States  Supreme  Court; 
they  claimed  that  to  prohibit  the  traffic  in  the  States  interferes 
with  the  right  of  the  national  government  to  collect  its  revenue. 
The  temperance  forces  then  argued  that  a  diminution  in  the  con- 
sumption of  liquor  does  not  necessarily  reduce  the  amount  of 
revenue,  because  a  sober  people  will  accumulate  more  wealth  than 
will  people  who  spend  their  money  for  drink,  and  such  an  accumula- 

40 


tion  in  the  increase  of  property  will  add  to  the  revenue  in  other 
forms,  so  that  there  will  be  an  increase  rather  than  a  decrease. 

The  Court  supported  and  confirmed  this  argument  by  the  fol- 
lowing comment:  "The  diminution  of  the  revenue  arising  from 
this  exercise  of  local  power  (meaning  the  police  power)  would  be 
more  than  repaid  by  the  beneficial  results.  By  preserving  as  far 
as  possible,  the  health,  the  safety  and  moral  energies  of  society, 
its  prosperity  is  advanced."  And  Justice  Grier,  in  his  part  of  the 
opinion,  said:  "If  a  loss  of  revenue  should  accrue  to  the  United 
States  from  a  diminished  consumption  of  ardent  spirits,  she  will 
be  the  gainer  a  thousand  fold  in  the  health,  wealth  and  happiness 
of  her  people." 

With  patriotic  citizens  searching  for  the  truth,  these  declara- 
tions of  the  Supreme  Court  ought  to  be  quite  as  persuasive  as  the 
pronouncement  of  the  Philadelphia  Liquor  Dealer's  Association. 

Another  answer  to  this  revenue  argument  is  that  several 
states  and  literally  hundreds  of  counties  in  various  parts  of  this 
nation  have  voted  out  the  saloons,  and  have  not  suffered  any 
irreparable  injury  to  the  public  revenues,  in  consequence  of  such 
action.  If  the  foundation  of  our  revenues  would  be  undermined 
by  voting  out  the  saloons,  then  in  some  of  these  states,  and  some 
of  these  counties,  there  would  be  at  least  some  intimation  of  col-  j, 
lapse,  but  you  have  yet  to  hear  of  the  first  county  or  state  that  has  ' 
not  been  able  to  support  its  institutions  and  maintain  its  financial 
honor,  after  the  saloons  have  been  put  out. 

Another  answer  to  this  argument  is  that  when  the  saloons  are 
put  out,  we  will  not  need  so  much  revenue.  In  all  the  large  cities 
the  police  force  and  the  expense  of  police  courts,  the  expense  of 
the  county  criminal  courts,  the  support  of  jails  and  infirmaries 
and  the  demands  of  public  charity,  would  be  so  reduced  that  the 
expenses  of  them  could  be  easily  met  by  other  means. 

Still  another  answer  is  that  new  sources  of  revenue  will  make 
up  a  further  part  of  that  now  derived  from  the  saloon.  When  a 
saloon 'is  put  out  some  legitimate  business  will  come  in  and  pay 
the  regular  and  ordinary  tax  and  thus  make  up  some  more  of  the 
lost  revenue. 

The  men  who  patronize  the  saloon  will,  after  it  is  driven  out, 
spend  less  money  for  drink  and  more  for  food  and  clothing,  thus 
increasing  legitimate  trade  in  those  lines. 

General  business  will  be  increased  and  pay  more  taxes.  A  non- 
drinking  community  will  lay  up  more  money  than  a  drinking  com- 
munity, and  tangible  taxable  property  will  be  then  increased  by 
saving  among  those  who  formerly  spent  their  money  for  drink. 

Any  disturbance  of  public  revenues  from  putting  out  the  sa- 

41 


loons  could  be  only  temporary  at  most.  A  policy  of  government 
which  preserves  the  moral  and  material  forces  of  the  people 
cannot,  for  that  reason,  prove  disastrous.  No  man  ever  ruined  his 
business  by  throwing  off  a  bad  habit.  Our  saloons  are  the  bad 
habitJ  of  our  municipalities.  It  will  no  more  hurt  our  cities  to  lay 
aside  a  bad  habit  than  it  will  the  individual  to  lay  aside  a  bad  habit. 

The  grunting,  complaining  condition  of  some  of  our  cities  is 
well  illustrated  by  a  man  who  was  getting  over  a  big  drunk.  Such 
a  man  feels  exceedingly  groggy  and  depressed,  and  will  often  de- 
clare that  he  cannot  live  unless  he  can  get  something  more  to 
drink.  Such  dreadful  prophesies,  however,  never  come  true,  and 
experience  has  shown  that  after  liquor  is  taken  away  from  them, 
they  will  come  to  themselves  and  be  more  vigorous  and  healthy  than 
they  were  while  they  were  drunk.  The  writer  knew  one  man  who 
used  to  sobei*  up  by  drinking  essence  of  peppermint.  He  thought 
it  indispensable  that  he  must  have  something  like  that  for  his 
stomach  and  nerves. 

The  cities  of  Ohio  have  been  on  a  drunk  for  many  years.  It 
is  no  wonder  that  some  of  them  feel  unnatural  and  disturbed  when 
they  find  themselves  deprived  of  liquor,  but  if  the  people  will  simply 
stand  firm  for  only  a  few  months  until  these  cities  have  a  chance 
to  become  thoroughly  sober,  they  will  soon  find  out  that  they  can 
get  along  all  right  without  the  liquor  revenue. 

But  even  if  the  saloon  revenue  was  not  all  made  up  by  savings 
and  increases  in  other  ways,  it  would  be  far  better  for  the  public 
welfare  to  raise  the  revenue  by  the  taxation  of  legitimate  business. 
It  is  incomparably  better  to  pay  tax  in  money  than  to  pay  it  in 
boys. 

In  the  local  option  campaign  at  Steubenville,  the  children  were 
parading  with  flags  and  banners  with  appeals  to  vote  "dry."  The 
liquor  people  sought  to  break  up  the  parade  by  throwing  handfuls 
of  pennies  and  nickels  at  the  childreos*  feet,  hoping  the  little  ones 
would  begin  a  scramble  for  the  coins  and  stop  marching.  But  the 
little  patriots  marched  right  on  and  trampled  the  tainted  money 
under  their  feet.  May  the  voting  patriots  of  our  State  be  as  loyal 
as  these  children !  But  there  are  many  voters,  who,  attracted  by 
the  jingle  of  the  pennies  and  nickels  of  taxes,  are  unable  to  keep 
step  with  the  march  of  these  children. 

Down  in  Athens  County  during  the  temperance  campaign,  one 
farmer  said  he  thought  he  would  vote  "wet"  because  the  loss  of 
saloon  revenue  would  raise  his  taxes.  A  neighbor  asked  him  how 
much  he  thought  his  taxes  would  be  raised.  He  answered :  "About 
a  dollar  a  year."  This  neighbor  then  asked  what  he  would  take  to 
vote  "dry."     With   a   show  of  indignation,  he   replied:     "Do  you 

42 


think  you  can  buy  my  vote?"  His  neighbor  replied:  "I  do  not 
know,  but  from  the  way  you  were  talking,  you  were  about  to  vote 
with  the  "wets"  to  save  a  dollar  and  I  thought  I  might  get  you 
pretty  cheap." 

The  man,  who,  in  order  to  save  a  dollar,  votes  to  fasten  upon 
the  community  a  source  of  crime  and  misery,  has  possibly  not 
stopped  to  reflect  that,  for  that  price  and  by  that  act,  he  is  also  be- 
traying his  country. 

My  final  answer  to  the  revenue  argument  is  that  the  saloon  is  a 
source  of  crime  and  misery  to  society,  and  no  source  of  crime  and 
misery  can  be  the  foundation  of  our  revenues.  No  continuous 
injury  to  public  morals  can  be  compensated  in  money.  This  nation 
cannot  permanently  endure,  if  it  adopts  any  source  of  crime  and 
misery  as  a  basis  of  its  revenues. 

Let  us  get  back  to  our  first  principles.  Morality  is  one  of  the 
essentials  of  citizenship  in  a  republic.  The  immoral  man  does  not 
help  manage  the  government  at  all,  and  any  institution  which  pro- 
duces immoral  men  is  an  enemy  of  the  State. 

So  long  as  we  use  the  saloon  as  a  source  of  revenue,  we  must 
submit  to  the  crime  and  misery  produced  by  the  saloon.  Anything 
which  produces  crime,  produces  immorality,  because  crime  is  only 
immorality  in  action. 

You  now  have  your  saloon  revenue  and  propose  to  expend  it 
in  the  best  way  you  can.  But  after  you  have  done  your  best,  there 
is  one  thing  which  you  cannot  do,  with  saloon  revenue.  That  one 
thing  is  of  more  importance  than  all  the  other  things  which  you 
can  do — you  cannot,  by  the  use  of  that  revenue,  reproduce  what  the 
saloon  destroys.  The  saloon  destroys  moral  character.  Money 
cannot  buy  moral  character  You  cannot,  by  the  expenditure  of 
money,  reproduce  in  the  character  of  your  citizens  the  moral  values 
that  were  destroyed  by  this  source  of  crime  and  misery,  out  of 
which  you  got  the  revenue  into  the  treasury.  So  long  as  you  trade 
public  morals  for  public  money,  the  balance  of  trade  is  bound  to  be 
against  you. 

The  fatal  fallacy  in  the  whole  revenue  argument  is  the  fact 
that  the  revenue,  when  obtained,  cannot  pay  for,  nor  restore,  the 
damage  done  in  getting  it.  It  is  fatally  wrong  to  try  to  enrich 
our  treasury  by  debauching  our  citizenship.  We  cannot  perma- 
nently endure  a  revenue  system  which  destroys  the  moral  character 
of  our  people.  It  is  like  a  man  who  would  try  to  fatten  a  lion  by 
feeding  him  at  the  head  end  with  raw  meat  cut  from  the  flank  of 
the  same  lion.  The  lion  might  get  two  square  meals  that  way, 
but  it  would  soon  be  apparent  that  the  destructive  processes  were 
far  greater  than  the  recuperation  produced.     The  relief  would  be 

*  43 


only  temporary,  while  the  injury  would  be  permanent.  The  same 
result  will  follow  where  we  try  to  feed  the  body  politic  on  self- 
destroying  saloon  revenue.  No  man  can  long  quench  his  own 
thirst  by  drinking  his  own  blood.  That  is  what:  the  saloonkeeper 
asks  us  to  do  when  he  asks  us  to  trade  the  morals  of  our  people 
for  revenue. 

That  man  would  be  branded  as  insane  who  would  burn  down 
his  own  house  to  get  warm.  He  could  in  that  way  produce  one 
good  fire,  and  warm  himself  once,  but  he  at  the  same  time  would 
destroy  his  shelter.  After  he  had  warmed  himself  once  in  this 
manner,  you  would  find  him  seated  out  of  doors  freezing  to  death 
in  the  ashes  of  his  own  folly.  He  would  destroy  the  very  thing 
which  is  necessary  to  his  continued  existence,  and  comfort,  and 
the  nation  can  no  more  afford  to  consume  the  character  of  its 
young  men  to  get  revenue,  than  a  man  can  afford  to  burn  down 
his  house  to  get  warm. 

The  United  States  Government  affords  us  a  good  illustration 
of  wise  conduct  in  its  last  contest  with  yellow  fever  in  New  Orleans. 
It  not  only  buried  the  victims,  and  cared  for  the  widows  and 
orphans,  but  it  quarantined  the  disease  itself.  The  saloonkeepers 
and  liquor  dealers  of  this  country  will  be  very  glad  to  have  us 
devote  all  of  our  energies  to  the  correction  of  crime  and  the  al- 
leviation of  misery,  so  long  as  we  leave  their  sources  of  crime  and 
misery  alone.  But  the  source  of  crime  and  misery  will  never  be 
transformed  by  expending  money  and  energy  to  relieve  against  its 
evil  results.  We  must  quarantine  the  saloon  itself,  and  thus  dry 
up  the  source  of  the  crime  and  misery. 

LIQUOR  TRAFFIC   INDEFENSIBLE. 

No  state  constitution  contains  any  inhibition  against  the  pas- 
sage of  laws  for  the  promotion  of  the  general  walfare,  but  many 
laws  passed  for  the  supposed  purpose  of  promoting  the  general 
welfare  are  set  aside  by  the  Courts  because  of  the  manner  in 
which  such  laws  are  passed  or  because  they  come  in  conflict  with 
some  constitutional  requirement  as  to  form,  though  the  substance 
of  the  act  may  be  unobjectionable.  It  is  sometimes  found  that 
such  statutes  do  not  have  a  uniform  operation,  or  make  an  un- 
reasonable classification,  but  no  Court  has  ever  set  aside  any 
statute  for  the  reason  that  the  statute  was  designed  to  promote 
the  general  welfare. 

On  the  other  hand  the  Courts  have  always  carefully  scrutinized 
police  measures  to  see  that  they  do  not  in  any  wise  conflict  with 
any  of  the  real  rights  and  liberties  of  the  people. 

44 


In  the  matter  of  Jacobs,  98  N.  Y.  98,  the  New  York  Court  of 
Appeals  says: 

"Generally  it  is  for  the  legislature  to  determine  what  laws  and 
regulations  are  needed  to  protect  the  public  health  and  secure  the 
public  comfort  and  safety,  and  while  its  measures  are  calculated, 
intended,  convenient  and  appropriate  to  accomplish  these  ends,  the 
exercise  of  its  discretion  is  not  subject  to  review  by  the  Courts. 
But  they  must  have  some  relation  to  these  ends.  Under  the  mere 
guise  of  police  regulations,  personal  rights  and  private  property 
cannot  be  arbitrarily  invaded,  and  the  determination  of  the  legisla- 
ture is  not  final  and  conclusive.  If  it  passes  an  act  ostensibly  for 
the  public  health  and  thereby  destroys  or  takes  away  the  property 
of  a  citizen,  or  interferes  with  his  personal  liberty,  then  it  is  for 
the  courts  to  scrutinize  the  act  and  see  whether  it  really  relates 
to  and  is  convenient  and  appropriate  to  promote  the  public  health. 
*  *  *  *  The  courts  must  be  able  to  see  that  it  has  at  least  in 
fact  some  relation  to  the  public  health,  that  the  public  health  is  the 
end  actually  aimed  at,  and  that  it  is  appropriate  and  adapted  to 
that  end." 

The  same  rule  applies  in  Ohio.  The  Ohio  Supreme  Court  in 
the  case  of  Palmer  v.  Tingle,  55  O.  S.  441,  says:  "The  right  and 
liberty  of  contract  is  one  of  the  inalienable  rights  of  man,  fully 
secured  and  protected  by  our  constitution,  and  it  may  be  restrained 
only  in  so  far  as  it  is  necessary  for  the  common  welfare,  and  the 
equal  protection  and  benefit  of  the  people.  That  such  restraint  of 
the  right  and  liberty  of  contract  is  for  the  common  public  welfare, 
and  equal  protection  and  benefit  of  the  people,  must  appear  not 
only  to  the  general  assembly,  by  force  of  popular  clamor,  or  the 
pressure  of  the  lobby,  but  also  to  the  courts,  and  it  must  be  so  clear 
that  a  court  of  justice,  in  the  calm  deliberation  of  its  judgment, 
may  be  able  to  see  that  such  restraint  is  for  the  common  welfare, 
and  equal  protection  and  benefit  of  the  people." 

In  Ex  parte  Quarg,  149  Cal.  79,  117  Am.  St.  Rep.  117,  the 
Supreme  Court  of  California  said: 

"The  police  power  is  broad  in  its  scope,  but  it  is  subject  to  the 
just  limitation  that  it  extends  only  to  such  measures  as  are  reason- 
able in  their  application  and  which  tend  in  some  appreciable  degree 
to  promote,  protect,  or  preserve  the  public  health,  morals,  or  safety, 
or  the  general  welfare.  The  prohibition  of  an  act,  which  the  court 
can  clearly  see  has  no  tendency  to  affect,  injure,  or  endanger  the 
public  in  any  of  these  particulars,  and  which  is  entirely  innocent  in 
character,  is  an  act  beyond  the  pale  of  this  limitation  and  is  there- 
fore not  a  legitimate  exercise  of  police  power." 

With  the  courts  thus  guarding  with  jealous  eye  every  actual  or 

45 


threatened  encroachment  upon  the  rights  of  liberty  or  property,  it 
is  a  significant  fact  that  all  courts  everywhere,  without  exception, 
have  held  that  laws  against  the  traffic  in  intoxicating  liquors  are 
proper  exercises  of  the  police  power.  The  ablest  saloon  defender 
cannot  point  to  a  single  court  decision  which  says  that  the  saloon 
is  a  good  thing  for  society.  No  court  has  ever  declared  that  the 
saloon  added  even  an  infinitesimal  increment  to  the  public  health, 
the  public  morals  or  the  public  welfare.  Not  all  courts  have 
spoken  with  such  emphasis  as  those  quoted,  but  all  have  sustained 
anti-saloon  laws  as  a  proper  exercise  of  the  police  powers  of  the 
state,  and  those  that  have  made  statements  as  to  the  character  of 
the  saloon  and  its  influence,  have  always  declared  the  saloon  to  be 
harmful,  and  not  helpful.  There  is  no  other  business  claiming  or 
pretending  to  be  necessary  or  legitimate,  which  is  so  completely 
without  a  friend  or  advocate  on  the  judicial  tribunals  of  the  land. 

THE  MAN  WHO  VOTES  "WET." 

If  these  arguments  be  sound,  what  is  the  real  attitude  toward 
the  public  welfare  of  the  man  who  votes  "wet?" 

He  says  by  his  vote  that  he  will  not  promote  the  general  wel- 
fare by  protecting  public  morals. 

He  says  by  his  vote  that  he  will  not  protect  the  intelligence 
of  our  citizenship  against  the  acknowledged  evils  of  the  liquor 
traffic 

He  says  by  his  vote  that  he  thinks  it  is  a  better  thing  to  pro- 
tect these  sources  of  crime  and  misery  than  it  is  to  protect  the 
homes  of  our  people. 

He  says  by  his  vote  that  the  crime  and  misery  of  the  saloon 
are,  in  his  opinion,  beneficial  to  society,  or  else  he  does  an  act 
which  he  knows  is  injurious  to  the  public  welfare. 

He  says  by  his  "wet"  vote  that  these  political  clubs,  which 
afford  ready  material  for  the  worst  sort  of  corruption,  are  worthy 
of  the  protection  of  a  freeman's  ballot. 

If  he  is  a  legislator  and  votes  against  the  enactment  of  whole- 
some laws,  which  fairly  promise  to  promote  the  general  welfare  or 
votes  to  repeal  such  laws,  he  effectually  denies  to  society  the  right 
of  self  defense  and  self  protection.  Not  to  help  society  fight  her 
battles  is  bad  enough,  but  to  abandon  society  to  the  beast  in  politics 
and  to  deprive  society  of  the  means  of  self  defense,  is  the  basest 
of  ingratitude  and  disloyalty. 

Let  us  go  back  again  to  the  words  of  Washington.  He  spoke 
of  religion  and  morality  as  indispensable  supports  of  political 
prosperity.     He   also    said,    "In   vain   would   that   man    claim    the 

46 


tribute  of  patriotism  who  should  labor  to  subvert  these  great 
pillars  of  human  happiness/* 

In  these  times  of  peace,  there  are  no  traitors  armed  with 
muskets  and  arrayed  in  line  of  battle  against  the  flag  of  their 
country,  but  ignorance  and  immorality  and  the  political  power  of 
these  organized  sources  of  crime  and  misery  are  as  grave  perils 
to  the  Republic  in  these  times  of  peace  as  an  army  with  banners 
in  time  of  war.  That  citizen  effectually  betrays  his  country  today, 
who  purposely  and  with  full  knowledge,  tries  to  place  the  gov- 
ernment under  the  dominion  of  any  source  of  crime  and  misery. 

No  citizen  can  rightfully  claim  the  tribute  of  patriotism  who 
labors  to  corrupt  the  morals  of  our  people,  or  engages  in  a  busi- 
ness which  directly  produces  that  result.  And  the  citizen  who 
wilfully  votes  to  maintain  an  institution  that  corrupts  public  morals 
is  no  more  loyal  to  his  country  than  the  corrupting  institution  which 
he  knowingly  supports. 


47 


Moral  Law  and  Civil  Law 


Parts  of  the  Same  Thing 


By 
COL.  ELI  F.  RITTER 
of  the  Indianapolis  Bar 

Judge  Noah  Davis,  of  the  New  York  Bar,  says  of  this 
great  book: 

"I  have  preached  and  tried  to  practice  for  many  years 
both  on  and  off  the  bench  the  great  truth  so  well  ex- 
pressed in  your  title,  for  nothing  can  be  truer  than  that 
Moral  Law  and  Civil  Law  are  'parts  of  the  same  thing/ 
Yet,  I  must  say  that  in  no  book  or  paper,  or  published 
document  or  judicial  opinion  have  I  seen  that  simple  ax- 
iom so  well  expressed,  so  clearly  defined  and  so  admirably 
proved  as  in  your  book.  The  strength  of  your  argument 
lies  in  its  clearness  and  simplicity,  and  no  man  can  read  it 
without  being  convinced  of  its  truth  and  soundness.  The 
strength  of  all  human  law  lies  in  its  morality,  lacking  that 
it  has  no  just  element  of  force  and  is  therefore  no  law. 
Law  commands  what  is  right  and  forbids  what  is  wrong, 
and  when  it  undertakes  to  declare  that  what  is  wrong  is 
right  and  lawful,  the  attempt  fails  and  the  right  prevails." 


PRICE  POSTPAID 
Paper,  50  Cents  Cloth,  $1.00 

Published  By 

THE    AMERICAN    ISSUE    PUBLISHING    COMPANY 

WESTERVILLE,  OHIO. 


UNIVEESITY   OF   CALITOENIA   LIBRARY, 
BERKELEY 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 

STAMPED   BELOW 

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50c  per  volume  after  the  third  day  overdue,  increasing 
to  $1.00  per  volume  after  the  sixth  day.  Books  not  in 
demand  may  be  renewed  if  application  is  made  before 
expiration   of  loan  period. 


MAR   16  1931 
DEC  27  1943 


75wi-7,'30 


2. "?  :2  3  '^  / 

UNIVERSITY  OF  CALIFORNIA  LIBRARY 


